1. This is a reference by the learned District Judge of Mahasu and Sirmur under Section 100, Punjab Tenancy Act. The plaintiff Mandir Narayan Deota filed a suit against the defendants for recovery of certain dues for grazing their sheep and goats on a pasturage known as the Kanda Kalga Patan. The defendants denied the plaintiff's right to claim the grazing dues. It appears that there were two previous decisions, one dated 1-4-1994 B. passed by the Raja Sahib of Bushahr and the other dated 21-5-1946 A. D. passed by Sir Dalip Singh as Judicial Committee. The plaintiff relied upon the former and the defendants upon the latter decision. The trial Court, the Subordinate Judge of Rohru, decreed the suit on 25-4-1949 on foot of the judgment of the Raja Sahib without going into any other question. The defendants went up in appeal to the District Judge and there raised for the first time an objection that the suit was not cognizable by a civil Court. The District Judge held that the present was a suit of the class mentioned in Section 77 (3) (o), Punjab Tenancy Act, which under the provisions of that section should have been heard and determined by a revenue Court. He has, therefore, submitted the record of the suit to this Court under Section 100(1) of that Act.
2. Before entering into the merits of the reference I deem it necessary to refer to the mistakes committed by the learned District Judge in making the reference. I do so in order that similar mistakes may not be made in future in this newly formed State. The initial mistake committed by him will appear from the order which I passed under Order 46, Rule 5, CivilP. C., returning the reference for amendment in the light of the observations made by me in that order. The order is reproduced below:
'The District Judge has stated that on a plain reading of the said section he was not required to submit his opinion along with the records. This is in contravention of Rules 3 and 15, Chapter 15, Volume I, High Court Rules and Orders. It is also in contravention of the provisions of Sub-clause (a) of Clause (1) of the said section, for the only way in which the High Court can find that it 'appeared' to the civil Court making the reference 'that a Court under its control had determined a suit of a class mentioned in Section 77 which under the provisions of that section should have been heard and determined by a Revenue Court' is by looking at the reference itself, which it would not be possible for the High Court to do if the reference does not fulfil the requirements of the said Rule 3 and Order 46, Rule 1, Civil P. C. It follows therefore that it was incumbent upon the learned District Judge when making the reference to (1) draw up a statement of the facts of the case, and (2) to state his own opinion showing how it appeared to him that the Court subordinate to his control had determined a suit of a class mentioned in Section 77 which under the provisions of that section should have been heard and determined by a revenue Court. The mere fact that the counsel for the parties conceded that point would not be a compliance with the above rules.'
In the amended reference received from him the learned District Judge has not only expressed the opinion called for from him but also his opinion on the merits of the case. He was again in error in doing so. An opinion on the merits of the case was neither asked for from him nor was he entitled to submit under the rules, and it will therefore be disregarded.
3. Coming to the merits of the reference and to the question of the proper order to be passed by this Court, the suit being by a landowner to recover moneys claimed as due for the enjoyment of right of pasturage, it belongs to the class mentioned in Section 77 (3) (o), Punjab Tenancy Act and so was exclusively cognizable by a revenue Court. The learned counsel for the parties conceded this before the District Judge and also here. They also agreed that the first of the two conditions mentioned in Section 100(2) of the Tenancy Act was satisfied, namely, that the suit had been determined in good faith by the trial Court. This was obviously due to the fact that the plea of the suit being cognizable by a revenue Court was not taken before the Subordinate Judge but, as stated above, for the first time before the District Judge in appeal. The learned counsel were, however, at variance with regard to the other condition mentioned in the said Sub-section as to whether the parties had, or had not, been prejudiced by the mistake as to jurisdiction committed by the trial Court. The learned counsel for the defendants, who were the appellants before the District Judge, contended that such a prejudice had been caused and therefore this Court should not order that the decree passed by the Subordinate Judge of Rohru be registered as a decree of the appropriate revenue Court. The proper order, according to him, to be passed by this Court is that the plaint be returned for presentation to theappropriate revenue Court. On the other hand, it was argued by the learned counsel for the plaintiff, the respondent in the lower appellate Court, that no such prejudice had been caused, and that the proper order to be passed by this Court is that the decree be registered in the appropriate revenue Court which had jurisdiction and the appeal filed by the defendants before the District Judge be returned to them for presentation to the appropriate appellate revenue Court. It will thus be seen that the attempt of the plaintiff is, subject to the result of any future appeal, to preserve the decree that has already been passed in his favour, whilst the defendants want to get rid of it and to have a trial 'de novo'. It may be further mentioned that the presiding officer at Rohru who decreed this suit as a Subordinate Judge also exercised jurisdiction as the appropriate Assistant Collector on the revenue side.
4. The sole question for determination before me, therefore, is whether or not the parties have been prejudiced by the mistake as to jurisdiction committed by the trial Court, and what is the proper order that this Court should pass in this reference.
5. It was urged by the learned counsel for the defendants that his clients had been prejudiced because the presiding officer in the trial Court decided the question of 'res judicata' as a civil and not as a revenue Court, as he should have done, and that if the point had been taken into consideration by that presiding officer as a revenue Court it is possible that he might have arrived at a different conclusion. It was further argued by him that the defendants had also been prejudiced because the trial Court had recorded no finding on the other questions that arose for determination in the suit on the pleadings of the parties. If the plaint is returned for presentation to the appropriate revenue Court, as suggested by him, the appellate revenue Court will have the benefit of that Court's findings on the other issues as well as on the issue of 'res judicata', and, therefore, it will not be necessary for the appellate Court to remand the suit in case it did not agree with the trial Court on the sole question of 'res judicata' so far decided by it. The argument put forward by the learned counsel for the plaintiff was that the decision of the trial Court on the question of 'res judicata' would have been the same whether it decided that issue as a civil or as a revenue Court, and that if the appellate revenue Court concurred with the finding on the said question already recorded by the trial Court the other issues need not be decided. To make the parties go once more to the trial Court would, according to the learned counsel, therefore, lead to an unnecessary harassment of the parties.
6. The learned counsel for the plaintiff cited the ruling reported as -- 'Chuha v. Asa', 3 Lah 84. In that case it appeared to the High Court in second appeal that the Courts below had decided a suit which was exclusively triable by a revenue Court under Section 77 (3) (d), Punjab Tenancy Act, and, acting under Section 100 (3) of that Act the High Court directed that the decree of the civil Court of first instance be registered as that of the appropriate revenue Court and that the appeal be returned by the District Judge to the appellants for presentation to the appropriate appellate revenue Court. This order could not have been passed unless it were held that the parties had not been prejudicedby the mistake as to jurisdiction. The reported decision is, however, quite silent on the point, and it cannot, therefore, serve as a guide for determination of the question that has arisen in this reference. He further cited the following three rulings: -- 'Gurdas v. Hassari', 13 Pun Re (Rev.) 1901; -- 'Banu Mal v. Ganda Singh', Lah L T (Rev.), 57 (sic); and -- 'Bhawani Singh v. Dilawar Khan', 31 All 253 (FB). All that these rulings lay down is that when a matter which has already been decided by a competent civil Court, e.g. the question of title to property, it cannot be reopened by the revenue Court. That is, however, not tantamount to saying that the decision of a civil Court is always binding on a revenue Court, for if the former decision of the civil Court was on a matter which it had no jurisdiction to decide it will not be binding on the revenue Court in a subsequent suit between the parties. Furthermore, in order that a decision in a former suit be binding on the parties in a subsequent suit it is necessary under Section 11, Civil P. C., that the former must have been a Court competent to try the subsequent suit. That being so, the decision on the question of 'res judicata' in the subsequent suit is likely to vary according to the nature of the Court trying the subsequent suit. It follows, therefore, that the finding on the question of 'res judicata' recorded by the presiding officer at Rohru as a Subordinate Judge need not necessarily have coincided with that recorded by him as a revenue Court. What would the finding of the presiding officer have been as a revenue Court cannot of course be surmised, and it cannot, therefore, necessarily be said that the defendants have been prejudiced by the adverse finding already standing against them.
It is, however, not necessary, and in fact not possible, to enter into that question, for, in my opinion, the very fact that a decision has been arrived at by a Court of incompetent jurisdiction is sufficient to justify the inference that the parties have been prejudiced by such a decision. Indeed, I find it difficult to visualise a case where it could justifiably be said that the parties had not been prejudiced by a decision even though it had been arrived at by a Court of incompetent jurisdiction, unless it be a case where in spite of the mistake as to jurisdiction the parties knowingly agree to be bound by such a decision. I hold that due to the mere fact of want of jurisdiction the parties have been prejudiced by the decision of the trial Court, and that therefore the proper order for this Court to pass is, not that the decree passed by the Subordinate Judge of Rohru be registered as that of the appropriate revenue Court, but that the plaint be returned for presentation to the proper revenue Court. As the defendants failed to take the plea of jurisdiction in the trial Court, I would not make any order as to costs.
7. The reference is accepted, the judgment and decree of the Subordinate Judge at Rohru are set aside and the Subordinate Judge is directed to return the plaint to the plaintiff for presentation to the Court in which the suit should have been instituted.