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Civil. Reference No. 169 of 1950, decided on 18th April 1951.
Appeal from the order of Sub‑Judge, 4th Class, Abbottabad dated 13th March 1950, decreeing the suit with costs.
---, S. 77 (3) (d)‑Applies only when suit is between admitted tenant and admitted landlord ‑Punjab Tenancy Act (XVI of 1887), S. 50.
Clause (d) would only apply if the defendant against whom a suit is brought is admittedly the landlord of the land in suit. If, however his title to the land as a landlord is denied and is therefore disputed, the suit, even if the plaintiffs say that they are the occupancy tenants but under some other persons, will clearly be congnizable by the Civil Court. Again, a suit covered by clause (d) is a suit for a declaration and not the one for possession. This suit is a suit for possession and the suit which is contemplated by clause (d) of section 77 (3) of the Punjab Tenancy Act is a suit for declaration. It is true that in a suit for possession if it is brought by an occupancy tenant, it has got to be proved by him that he is the occupancy tenant in order to succeed in the suit, but then that question is raised incidentally. The primary cause of action is the wrongful possession of the land by. the defendant and the right of the plaintiff to eject him therefrom. This is a relief which can only be granted by the Civil Court. The result is that clause (d) of subsection 0) of section 77 of the Punjab Tenancy Act does not bar the jurisdiction of the Civil Court to hear the suit in question.
The very wordings of section 50 of the Punjab Tenancy Act, would make it clear that the suit has got to be brought against a landlord. If an occupancy tenant brings a suit against a ‑person, who, he says, is a trespasser, and that person alleges that he is the landlord, the claim would clearly be cognizable by the Civil Court, because it is only the Civil Court which can find whether a defendant has any title to the property or not.
The net result is that section 77 of The Punjab Tenancy Act will only bar those suits which are between the admitted tenant and the admitted landlord. It has got absolutely nothing to do with the suits in which one of the parties in order to establish his claim has got to prove that he is either the landlord or the tenant.
Petitioner in person.
Muhammad Afzal, for plaintiff‑respondents.
Other respondents served but absent; proceeded against ex‑parte.
.‑The dispute in this case relates to Khasra No. 765, measuring 3 kanals 3 marlas, situated in Banda Pir Khan in the Hazara District. Its old Khasra No. was 296 min. In the revenue papers it is shown as belonging to Mian Khan, Mir Afzal and several others. Azizullah Khan, Abdur Rahim Khan, Samundar Khan and Faizullah Khan were entered as the occupancy‑tenants of this land under section 5 of the Punjab Tenancy Act. Faizullah Khan by mutation No. 4571 attested on the 11th of December 1944, sold away his rights in the occupancy tenancy in favour of Azizullah Khan, with the result that Aziz ullah and his two sons Abdur Rahim and Sumandar Khan, who are the plaintiffs in this case, became the sole occupancy tenants of the land. They instituted the suit out of which the present reference has arisen for possession of this land against Khushal Khan, on the allegation that the latter had taken forcible possession of it since about two years.
Khushal Khan defendant the suit by saying that the Court‑fee was not correctly fixed, that Ire had been in possession of this property since about 1904‑1905, and that the plaintiffs had relinquished their right in the property in suit by mutation No. 5166. He consequently averred that the plaintiff's' suit, was liable to be dismissed.
Besides the general issue of relief, the learned trial Court framed the following four issues :‑
(1) Whether the Court‑fee is proper
(2) Whether the plaintiffs are the occupancy tenants of th e suit land
(3) Whether the plaintiffs' suit is in time
(4) Whether the correction mutation No. 5166 was validly attested.
On issue No: 1, the learned trial Judge came to the conclusion that the value for purposes of jurisdiction was Rs. 100. The plaintiffs were therefore ordered to make good the Court‑fee, which they did. On issue No. 2 he found the plaintiffs to be the occupancy tenants On issue No. 3 he held that the suit was clearly within time, and on the last issue he came to the conclusion that mutation No. 5166 stood discredited and disproved, and, therefore, it was not validly attested. As a result of his findings on theses issue he granted plaintiff's a decree for the possession of the suit land with costs against the defendant.
On appeal the learned District Judge, Hazara, on merits agreed with the findings of the learned trial Court, but he held that the suit was covered by section 77 (3) clauses (d) and (g) of the Punjab Tenancy Act, and it was, therefore, triable only by a Revenue Court. He has forwarded the record on to this Court under section 100 of the Punjab Tenancy Act, with the recommendation that the decree of the trial Court be registered as that of the revenue Court.
The only question which requires determination at this stage is whether the suit as brought by the plaintiffs way not cognizable by the Civil Court.
The broad general principle of law is that the Civil Courts have plenary jurisdiction which in any particular matter cannot be regarded as ousted until and unless the Legislature has, in an un mistakable language, taken it away from them. Section 77 of the Punjab Tenancy Act lays down the cases which acre exclusively triable by the Revenue Court. In order to oust the jurisdiction of the Civil Court, a case should be covered by the precise terms of one or the other of the clauses of section 77 of the Punjab Tenancy Act. It is not necessary that it should be identical with the clause or clauses of that section in form ; the jurisdiction will be ousted even if in substance they are identical with each other.
In the case before me Khushal Khan was not the original owner of the property, and he was, therefore, not the landlord. The landlords were Mian Khan and others, who are no party to the present suit. As against Khushal Khan, the plaintiffs' suit was that qua Khushal Khan they as the occupancy tenants had got the right to possess the property. In reply to this suit Khushal Khan set up two mutations, Nos. 5.166 and 5167. By the former Rahmatullah and Faizullah on their own behalf and on behalf of the other owners of the occupancy‑tenancy are alleged to have given up that right in, favour of Khushal Khan. By the latter Mutation Mian Khan and others are alleged to have given up their proprietary right in the suit land in favour of Khushal Khan. Now Rahmatullah and Faizullah at the time when mutation No. 5166 was entered i.e., 12th June 1947 were not the occupancy tenants of the land at all, and although Faizullah was mentioned therein as such: yet he had already given up this right in favour of Azizullah by mutation No. 4571, attested on the 11th of December 1944. These two persons, therefore, had prima facie no right to give up the rights which belonged to somebody else. This mutation consequently so far as the plaintiffs are concerned will be considered as non‑existent. As regards mutation No. 5167, it was for Khushal Khan or his successors‑in‑interest, who are now the respondents in this case, Khushal Khan having died during the pendency of the suit, to prove that it was a genuine mutation. Both the Courts below have given no finding on this mutation. If the Courts find that this mutation is also nonexistent, or it has not been proved to have been duly attested, then Khushal Khan and his successors‑in‑interest qua the land in suit would not be the landlords at all. They would at the utmost be trespassers, and as such the plaintiffs would be perfectly within their right to bring a suit against them in a Civil Court for their ejectment. Even if, however, mutation No. 5167 be proved as genuine, still I do not think that the present suit would be barred by any of the clauses and particularly clauses (d) and (g) of subsection (3) of section 77 of the Punjab Tenancy Act. Clause (d) is to the following effect :‑---
"Suits by a tenant to establish a claim to a right of occupancy, or by landlord to prove that a tenant has not such a right ;''
Clause (g) runs as under :‑---
"Suits by a tenant under section 50 for recovery of possession or occupancy, or for compensation, or for' both ;
Clause (d) would only apply if the defendant against whom a suit is brought is admittedly the landlord of the land in suit. If, however, his title to the land as a landlord is denied and is therefore disputed, the suit, even if the plaintiffs say that they are the, occupancy tenants but under some other persons, will clearly be congnizable by the Civil Court. Again, a suit covered by clause (d) is a suit for a declaration and not the one for possession. The suit now before me is a suit for possession and the suit which is contemplated by clause (d) of section 77 (3) of the Punjab Tenancy Act is a suit for declaration. It is true that in a suit for possession if it is brought by an occupancy tenant, it has got to be proved by him that he is the occupancy tenant in order to succeed in the suit, but then that question is raised incidentally. The primary cause of action is the wrongful possession of the land by the defendant and the right of the plaintiff to eject him therefrom. This is a relief which in my opinion can only be granted by the Civil Court. The result is that in my view clause (d) of sub section (3) of section 77 of the Punjab Tenancy Act does not bar the jurisdiction of the Civil Court to hear the suit in question.
As regards the application of clause (g), it only applies if a suit is brought under section 50, for recovery of possession or occupancy, or for compensation, or for both. Section 50 runs as under :‑-
"In either of the following cases, namely :‑--
(a) if a tenant has 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 ;
(b) if a tenant, 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, the tenant 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 very wordings of section 50 of the Punjab Tenancy Act, would make it clear that the suit has got to be brought against a landlord. If an occupancy tenant brings a suit against a person, who, he says, is a tresspasser, and that person alleges that he is the landlord, the claim would clearly be cognizable by the Civil Court, because it is only the Civil Court which can find whether a defendant has any title to the property or not.
The net result is‑ that section 77 of the Punjab Tenancy Act will only bar those suits which are between the admitted tenant and the admitted landlord. It hag got absolutely nothing to do, with the suits in which' one of the parties in order to establish his claim has got to prove that he is either the landlord or the tenant.
The learned District Judge has made a reference to 1942 Pesh. L. J. p. 65. In this case all that was held was that all the remedies of a tenant, who has been dispossessed are provided in the Tenancy Act, and therefore all suits between the dispossessed tenant and his landlord should be disposed of by the Revenue Court. I have no quarrel with this proposition of law, but then the suit has got to be between the landlord and the tenant and not between the tenant and the trespasser or the landlord and the ‑trespasser. I am, therefore, of the opinion that the suit now before me did not in any way bar the jurisdiction of the Civil Court.
I consequently reject the reference, and send the case back to the District Judge Hazara, to decide the appeal on merits. Costs to follow the event.
K. M. A. Reference answered.
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