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F. A. O. No. 221 of 1970, heard on 30th October 1973.

-S. 77(3) and Civil Procedure Code (V of 1908), S. 9-Jurisdiction of civil Court-Bar contained in S. 77(3) of Act XVI of 1887 applicable only where relationship of landlord and tenant between parties is admitted as existing and subsisting on date of filing of civil suit Jurisdiction of civil Court not taken away merely because question of landlord and tenant is raised by a party-Question in such circum stance would be merely incidental or subsidiary question-Plaintiff" in civil suit claiming to have become owner of property under S. 114 of Punjab Tenancy Act, 1887-Suit before civil Court not barred by S. 77(3) of Act XVI of 1887.

Section 77(3) of the Punjab Tenancy Act, 1887 provides that a suit by a tenant to claim right of tenancy can be filed only before a Revenue Court. Where suit cognizable by a Revenue Court is instituted in a civil Court and it becomes necessary to decide any matter which could be heard and determined only by a Revenue Court, the civil Court shall endorse upon the plaint the nature of the matter for decision and the particulars required by Order VII, rule 10, C. P. C. and return the plaint for presentation to the Collector. The terms in which clause (d) of section 77(3) is couched shows that it is applicable only to a case where a suit is by a tenant who claims a right of tenancy as subsisting on the date of the suit or where the suit is filed by a landlord to prove that his tenant had no subsisting right on that date, obviously therefore, it will not apply to a case where the suit is not by a tenant but by a person who once used to be a tenant and now claims to be an owner. It will not apply to a case where no subsisting right of occupancy tenancy is claimed by a tenant. This clause will apply only to a case where admittedly the relation ship of landlord and tenant exists between the parties and the only dispute is whether that relationship is of occupancy tenant or of a non-occupancy tenant. It will not apply to a case where subsisting relationship of landlord and tenant is not admitted.

Under section 77, subsection (3)(a), the suits contemplated by that clause are suits either by a tenant, i.e. a person who claims to be a tenant and is a tenant, to establish a claim to a right of occupancy or by a landlord, i.e., a person who claims, or is admitted to be or is found to be the landlord, to prove, that a person admitted to be a tenant has not a right of occupancy.

Clearly, therefore, if the relationship of landlord and tenant is not admitted as existing and subsisting on the date of filing of the suit clause (d) is not a bar to the jurisdiction of the civil Court. This jurisdiction is not taken away merely because the question of landlord and tenant is raised. Such a question, in these circumstances is merely incidental or subsidiary question.

Mian Bakhsh v. Ilam Din P L D 1950 Lah. 414 ; Karam Khan v. Azizullah Khan P L D 1951 Pesh. 27 ; Mirza v. Muhammad Zaman Khan P L D 1957 Lah. 242 ; Muhammad Afsar v. Allah Ditta 1970 S C M R 118 ; Fai'z Sultan v. Hussain P L D 1968 Pesh. 75 ; Sarwar Shah v. Kalu P L D 1959 Pesh. 112 ; FerOze Din v. Hashmat .91i P L D 1963 Lah. 283 ; Mewa Singh v. Nathu 82 P,R 1894 ; Wazeera v. Marialu 160 P R 1890 ; Amer Nath and another v. Raghpat Rai 101 P R 1918; Jai Karam and others v. Nathu Ram and annther A I R 1926 Lah. 338 and Zainab v. Fazal Dad P L D 1966 Lah. 1050 ref.

Akram v. Zakaria Khan P L D 1962 Pesh. 2 and Umar Din v. Faqir Muhammad P L J 1973 Lah. 31 distinguished.

Sh. Attaullah Qureshi for Appellant.

Zia Muhammad Mirza for Respondents Nos. 1 to 4.

Nemo for Respondents Nos. 5 to 11.

Date of hearing : 30th October 1973.

This appeal arises out of an order of Mr. Hassan Nawaz, Additional District Judge, Sargodha, reversing the judgment and decree passed in favour of the plaintiffs-appellants on the 30th September 1969, and finding that the suit was not triable by the civil Court, directing the plaint to be returned to the appellants for presentation to the proper Court. This appeal has arisen in the following circumstances.

The dispute between the parties relates to 22 kanals 16 marlas of land situated in village Miana Mazara, Tehsil Bhaiwal, District Sargodha, which was owned by the respondents and bad been in occupation first of Maulvi Muhammad Ibrahim, then of Maulvi Chiragh Din and ultimately of Mst. Haliman. Predecessor. in-interest of the appellants as a tenant It may be stated that Mst. Haliman deceased was the wife of Maulvi Chiragh Din. None of these persons had ever paid any rent to the respondents. They had been paying only land revenue and taxes to the Government.

Mst. Haliman was recorded in the revenue record as Ghair Maroosi Awal. After her death, Mutation No. 143 was entered by the Patwari at the instance of Muhammad Ali, respondent No. 1, who claimed that a mutation of abandonment of possession by the tenant may be entered as Mst. Haliman had died 3 or 4 months ago. The appellants claimed that Mst. Haliman was an occupancy tenant and after her death they were in possession of the property. The Revenue Officer held that the matter pertained to the correction of the earlier record and an order could not be passed without a direction from the Collector. He, therefore, refused to attest the mutation vide Exh. P. 1/A. Some of the respondents, i.e. respondents Nos. 1 to 3 filed an appeal against this order before the collector which was allowed by him on the 22nd July 1967 (Exh. D/3). He held that as the entries in favour of Mst. Haliman were vague and loose, she could not be deemed to be an occupancy tenant. she enjoyed the fruit of the possession as long as she was alive and after death, the entry existing in her name should die its natural death and the tenancy should revert to the land-owners. He, therefore, set aside the order of the Revenue Officer. The appellants filed a suit on the 22nd June 1963, for a declaration that they were owners of the property in dispute. They challenged the order of the Collector dated the 22nd July 1967, and prayed for a permanent injunction restraining the defendants-respondents from interfering with their possession over the property in dispute. In the plant they alleged that Mst. Haliman was in possession of the property without paying any rent for over a period of 25 years in 1951-52, when section 144 was added to the Punjab Tenancy Act. As she was an occupancy tenant and was not paying any rent, she had become owner thereof under section 114 of the above Act.

This suit was contested by the respondents on the ground that Mst. Haliman was only a non-occupancy tenant. It was averred that the land was in possession of Maulvi Chiragh Din in lieu of service rendered by him to the residents of the village since he imparted education to the children. It was for this reason that no rent was payable by him. It was, therefore, denied that Mst. Haliman was an occupancy tenant. Some .other objections were also taken. The following issues were framed by the learned trial Court :-

(1) Whether the civil Court has got jurisdiction to try the suit

(2) Whether Gul Muhammad, defendant No. 5 has died before the institution of the suit If so, its efect

(1) Whether Mst. Haleeman had become the owner of the suit land

(2) Whether the plaintiff's are the sole legal heirs of Mst. Haleeman, deceased

(3) Relief.

'The preliminary issues were decided on the 17th April 1969. It is apparent from the order of the learned Civil Judge that issue No. 1 was not contented at the time of the arguments by the respondents. It was held under issue No. 2 that although Gul Muhammad had died before the institution of the suit but it was not fatal to the suit and his legal heirs could be impleaded as party.

The issues on merits were decided on the 30th September 1969. It was held that Mst. Haliman was an occupancy tenant and as such bad become full owner of the property in dispute in the year 1988 after the introduction of section 114 in the Punjab Tenancy Act. Issue No. 2 was also answered in the affirmative and it was held that the petitioners are the legal heirs of Mst. Haliman. As a consequence of the findings, a decree was passed in favour of the appellants.

Respondents Nos. 1 to 4 filed an appeal against this order. This appeal was allowed only on the finding preliminary issue No. 1 which had not been contested by the defendants-respondents before the learned" Civil Judge. He held that this matter involved the question whether Mst. Haliman was an occupancy tenant or not and this question was within, the exclusive jurisdiction of the Revenue Court under section 77 of the Punjab Tenancy Act. He, therefore, held that the proper course was to return the plaint for presentation to the proper Court.

2. The learned counsel for the appellants contended that in this case the main question was whether Mst. Haliman was an owner of the property in dispute and the question whether she was an occupancy tenant was subordinate to that question. The matter could therefore, be decided by the civil Court only for the reason that it is not open to the revenue Court to decide the question of title.

The learned counsel for the respondents on the other hand, argued that the main question was whether Mst. Haliroan was vested with the occupancy tenancy rights before 1952. This question could not be decided by a civil Court in view of the specific bar of section 77 of the Punjab Tenancy Act, which provides that a suit 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, shall he instituted in and heard and determined by revenue Courts, and no other Courts shall take cognizance of any such dispute.

7. Section 77(2) of the Punjab Tenancy Act reads as follows :-

"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 :

Provided that-

(1) where in a suit cognizable by and instituted in a civil Court it becomes necessary to decide any matter which can under this sub section be heard and determined on by a revenue Court the civil, Court shall endorse upon the plaint the nature of the matter for decision and the particulars required by Order VII, rule 10, Civil Procedure Code, and return the plaint for presentation to the. Collector;

(2) on the plaint being presented to the Collector the Collector shall proceed to hear and determine the suit where the value thereof exceeds Rs. 1,000 or the matter involved is of the nature mentioned in section 77(3), First Group of the Punjab Tenancy Act, 1887, and: in the other case may send the suit to an Assistant Collector of the 1st Grade for decision:-

(a) ..

(b) ..

(c) ..

(d) suits by a tenant to establish a claim to a right of occupancy, or-b7F' a landlord to prove that a tenant has not such a right ;

(e) ..

.

It provides .that a suit by a tenant to claim right of tenancy can be file only before a Revenue Court, where suit cognizable by a Revenue Court is instituted in a civil Court and it becomes necessary to decide any matter which could be heard and determined only by a revenue Court, the& civil Court shall endorse upon the plaint the nature of the matter for decision and the particulars required by Order VII, rule 10, C. P. C. and return the plaint for presentation to the Collector. The terms in which clause (d) of section 77 3) is couched shows that it is applicable only to a case where a suit is by a tenant who claims a right of tenancy as subsisting on the date of the suit or where the suit is filed by a landlord to prove that his tenant had no subsisting right on that date. Obviously therefore, it will not apply to a case where the suit is not by a tenant but by a person who once used to be a tenant and now claims to be an owner. It will not apply to a case where no subsisting right of occupancy tenancy is claimed by a tenant. This clause will apply only to a case where admittedly the relationship of landlord and tenant exists between the parties and the only dispute is whether that relationship is of occupancy tenant or of a non-occupancy tenant. It will not apply to a case where subsisting relationship of landlord and tenant is not admitted. In Mian Bakhsh v. Ilam Din (P L D 1959 Lah. 414) it was held that "if the definitions of tenant' and landlord' are substituted for those terms where they occur in clause (d) in, the Second Group of subsection (3) of section 77 of the Punjab Tenancy Act, it becomes clear that the clause will be applicable only if the status of the parties as landlord and tenant, as the case may be, is not in dispute". It was further held that if in a suit by an owner of land it is alleged that the defendant is a trespasser, clause' (d) has no application, and the jurisdiction of the civil Courts, which are Courts of general jurisdiction,. will not, be taken away by any provision of the Punjab Tenancy Act. This was a suit on behalf of the owners of the land asserting that the-, defendants-appellants had no right to succeed to Rahim Bakhsh deceased occupancy tenant. Reliance was placed upon clause (d) in the Second Group of subsection (3) of section 77 on the ground that this involved a question whether the defendants were occupancy tenants-, or not. It was in that context that the above finding was given and it was held that the suit was within the competence of the civil Court.

Same view was taken in Karam Khan v. Azizullah Khan (P L D 1951 Pesh. 27). In that. case also the plaintiffs had pleaded in a suit for pre-emption that they had become the sole occupancy tenants of the land. This was contested inter alia, on the ground that the plaintiffs bad relinquished their rights in the property in suit. In that case also a decree was passed against the defendants but the District Judge in appeal held that the suit was covered by clauses (d) and (g) of the Punjab Tenancy Act. He further forwarded the record to the Court under section 100 of the Punjab Tenancy Act with the recommendation that the decree of the trial Court be recorded as that of the Revenue Court. It was held that a suit under clause (d), was a suit for declaration and not for possession. It was further observed that "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 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 there from. This is a relief which can only be granted by the civil Court". The case was remanded to the District Judge to ..decide the appeal on merits.

Mirza v. Muhammad Zaman Khan (P L D 1957 Lah. 242) was a case in which the plaintiffs .,claimed to have become owners of the property under section 114 of the Punjab Tenancy Act. It was pleaded by the defendants that the plaintiffs had abandoned their occupancy tenancy rights. The civil Court went into the question whether the plaintiffs were occupying the land on the -late of enforcement of the Punjab Tenancy (Amendment) Act, 1952, and it was found that they bad lost their right of occupancy on account of abandonment. The High Court set aside these two judgments and decrees and decreed the plaintiff's suit for possession of the land in dispute as owners on the finding that there was no abandonment or loss of occupancy tenancy rights. It is no doubt true that the question of applicability of -section 77 does not appear to have been taken there but this is a poi t which could have hardly escaped notice of an eminent Judge like Mr. Justice .B. Z. Kaikaus who had decided the case.

Against a similar judgment of the High Court passed in R. S. A. No. 190 ..of 1958, a Petition for Special Leave to Appeal was filed in the Supreme Court but that petition was dismissed. Muhammad Afsar v. Allah Ditta (1970 S C M R 118). The High Court had found in that case also that there was no abandon ment and consequently the suit for declaration filed by the landlords that the respondents who were tenants of occupancy and were not eligible to acquire any ownership rights under section 114 of the Punjab Tenancy Act was dismissed. Same view was taken in Faiz Sultan v. Hussain (P L D 1968 Pesh. 75).

In Sarwar Shah v. Kalu (P L D 1959 Pesh. 112) it was held that where a person enters as a :tenant-at-will, but later on refuses to vacate the property when called upon to do so, and sets up an adverse title to the landlord, there is a . question of title involved in the case and the civil Court has jurisdiction to try the suit. It was further observed that "section 77(3) of the Punjab Tenancy Act, 1887 only operates where a landlord brings a suit against another person, alleging him to be his tenant, but no sooner he alleges -that the tenant by his own conduct has rendered himself to be a trespasser then the jurisdiction of the revenue Court to hear such a suit is completely ousted."

In Feroze Din v. Hashmat (P L D 1963 Lah. 283) in a suit for possession filed by the landlord, adverse possession was pleaded by the defendants and in the alternative it was contended that they and their sisters had not paid any rent to the plaintiffs and being occupancy tenants had become owners of the land under section 114. The following issue was, therefore, framed : -

"Whether the defendants Nos. 1 to 3 are the occupancy tenants of the land in dispute paying no rent "

This issue along with the issue of adverse possession was found against the defendants and the suit was dismissed. Finding on issue No. 5 only was challenged before the first appellate Court but it affirmed the decree of the learned trial Court. The second appeal was also dismissed. The question of bar of jurisdiction of the civil Court was raised before the High Court. It was held as follows :-

"Clause (d) applied only to those cases in which the relationship of landlord and tenant is admitted and the object of the suit is to determine the nature of the tenancy, I.e., whether the status of the tenant is covered by section 5, 6, 7 'or 8 of the Act. The point for determination in the present case is not the nature of the tenancy, but whether the defendants in fact are the owners of the property through adverse possession and in the alternative have they acquired the status of the tenant is covered by section 5, 6, 7 or 8 of the Act. The point for determination in the present case is not the nature of the tenancy, but whether the defendants in fact are the owners of the property through adverse possession and in the alternative have they acquired the status of occupancy tenants. It is not a case in which the occupancy is admitted. It is clear, therefore, that bar under clause (d) of subsection (3) of section 77 is not attracted to the facts of the present case. This question stood finally resolved by a Full Bench decision in Baru and others v. Niadar and others A I R 1942 Lah. 217 where Dalip Singh, J., observed :-

'As I read section 77, subsection (3) (a), which is the subsection involved, the suits contemplated by that clause are suits either by a tenant i.e. a person who claims to be a tenant and is a tenant, to establish a claim to a right of occupancy or by a landlord, i.e., a person who claims, or is admitted to be or is found to be the landlord, to prove, that a person admitted to be a tenant has not a right of occupancy'."

In Mewa Singh v. Nathu (82 P R 1894) it was held that the admitted existence of relationship of a landlord and tenant is necessary before the suit is barred under clause (d) of subsection (3) of section 77, Punjab Tenancy Act.

This view was also taken in Wazeera v. Marjalu (160 P R 1890), Amar Nath aria another v. Raghpat Rai (101 P R 1918) and Jai Karam and others v. Nathu Ram and another (A I R 1926 Lah. 338). All these cases have been referred to in Feroze Din v. Hashmat Ali.

Clearly, therefore, if the relationship of landlord and tenant is no admitted as existing and subsisting on the date of filing of the suit clause (d is not a bar to the jurisdiction of the civil Court. This jurisdiction is no taken away merely because the question of landlord and tenant is raised.

Such a question, in those circumstances is merely incidental or subsidiary question.

4. The learned counsel for the respondents on the other hand relied upon Akram v. Zakeria Khan (P L D 1962 Pesh. 2). In that case the plaintiffs had filed a suit for a declaration that being occupancy tenants they had become owners of the property involved in the suit by virtue of operation of section 4 of the North-West Frontier Province Tenancy Act, 1950. It was held that this suit involved a question of declaration of the occupancy tenancy interest and was within the jurisdiction of the civil Court. That case however, is distinguishable as this finding was based upon section 83 of the North- West Frontier Province Tenancy Act which provides that "any person who but for this Act would have been entitled to be declared an occupancy tenant within the meaning of section 5 of the Punjab Act of 1887, as applicable to the North-West Frontier Province by North-West Frontier Province Law and Justice Regulations, 1901. or section 5 of Hazara Tenancy Regulations, 1887, shall within three years after the commencement of this Act apply for such declaration and on such declaration being granted, he shall be entitled to the benefit of sections 4 and 4-A of this Act." This authority therefore is of no assistance to the respondents.

5. The case of Zainab v. Fazal Dad (P L D 1966 Lah. 1050) was also referred. But this case is against the contention of the learned counsel for the respondents. In this case, in a suit for ejectment filed under section 77 of the Tenancy Act before the revenue Court, the defendants claimed that they were not Ghair Maroosi tenants but were in possession of the land as owners. This suit was therefore withdrawn and another suit in the civil Court was filed. The defendants raised objections about the jurisdiction of the civil Court. As a consequence thereof the plaints were ordered to be returned under section 77(3) of the Tenancy Act. This order was set aside by the High Court. It was held that section 77(3) shall apply only when the relationship of landlord and tenant is admitted and the nature of the tenancy alone is in dispute. In fact, this case is in line with the other cases which I have already referred to above.

The learned counsel then referred to Umar Din v. Faqir Muhammad (P L J 1973 Lah. 31) where it was held that "the suit by a tenant to establish a claim to a right of occupancy or by a landlord to prove that a tenant has no such right is a matter exclusively within the jurisdiction of the revenue Court. This case is also distinguishable. In that case the question of extinction of occupancy rights was raised at a very late stage and a petition for amendment of the plaint was filed by the plaintiffs. It was held that the plaintiffs never challenged the extinction of occupancy tenancy under section 114 of the Punjab Tenancy Act when the defendants had deposited the amount according to law and a mutation had taken place in their favour. It was further held that it was not a case, therefore, in which amendment can be allowed for a suit of this nature, is not triable by a civil Court.

6. I am of the view that the present suit was competent before a civil Court and was not barred by any provisions of the Punjab Tenancy Act. I therefore, set aside the order under appeal and remand the case to the learned District Judge for decision of the appeal on merits.

There will be no order as to costs.

K. B. A. Appeal accepted. Case remanded.

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