Find a Lawyer

Second Appeal No. 6 of 1955, decided on 6th October 1955 from the decree of the Court of M. G. Cheema, Senior Civil Judge, Lahore, with enhanced appellate powers, dated the 24th day of November 1954, setting aside that of Muhammad Ilyas, Civil Judge, 3rd Class, Lahore, dated the 24^th December 1953,

‑Decision of tribunal of special jurisdiction operates as res‑judicata only with regard to matters pertaining to its special jurisdiction‑Order of Rent Controller under Punjab Urban Rent Restriction Act, held, not res‑judicata in subsequent civil suit on question of title‑Civil Procedure Code (V of 1908), S. 11‑Subsequent suit, however, barred on ground o f estoppel‑. Evidence Act (1 of 1870, S. 116),

The judgment of a Special Tribunal is res‑judicata on a matter which is within the exclusive jurisdiction of the Tribu nal but it does not bind Civil Courts on matters which are not within the special jurisdiction of the tribunal.

M was ordered to be ejected as a tenant of K from certain premises by the order of the Rent Controller under the Punjab Urban Rent Restriction Act. M brought the present suit in a Civil Court claiming that he was the owner in possession of the premises in question.

Held, that the Rent Controller not being a Court but, a tribunal of special jurisdiction, the order of the Rent Controller was not res‑judicata in the subsequent civil suit instituted by M against K for a declaration that M was the owner in possession of the premises in dispute. Nevertheless, M was estopped from claiming a different status from that of a tenant of K by reason of the provisions of section 116, Evidence Act (I of 1872). The suit of M, therefore, was not competent.

Corporation of the City of Lahore v. Fahmida Begum PLD 1952Lah.258(FB)rel.

Bahadur Ali v. Amir Ullah Khan P L D 1955 Lah. 140, Mst. Harnam Kaur v. Narain Singh and others A I R 1935 Lah. 739, Bila v. Sultan Ali and others 45 P R 1918, Ganga Singh v. Bhan Singh and anther A I R 1926 Lah. 178, Ghamvat v. Toti Ram A I R 1934 Lah. 324, Muthu Vijiaraghunatha Durai singam v. Venkatachalam Chettiar and others A I R 1934 Mad. 551 and Jawahir v. Niaz Amad Khan A I R 1942 Oudh 301 and Dutehess of Kingstons Case 2 S M L C 679 ref.

Bajrang Bahadur Singh v. Beni Madho Bakhshi A I R 1932 Oudh 19, Gajendra Singh v. Durga Kumari A I R 1925 All. 503 and Ghulam Muhammad v. Sheikh Zafar Ali P L D 1951 Lah. 234 distinguished.

Rai Singh and another v. Man Singh and others A I R 1933 Lah. 738 dissented from.

Naseem Hasan for Appellants.

Muhammad Akram for Respondents.

‑This second appeal arises out of circum stances that follow. Mst. Khurghid Anwar and Mst. Sitara Jabeen, who are the appellants before me, filed two separate applications under the Urban Rent Restriction Act in respect of two separate portions of the same katri, the application of Mst. Khurshid Anwar being against Muhammad Hussain and his two brothers, the male respondents in this appeal, and the application of Mst. Sitara Jabeen being against one Sardara who is not a party to this appeal. Muhammad Hussain and his brothers pleaded before the Rent Controller that they were themselves the owner of the whole of the katri which had been built by their own father. Sardara pleaded that he was a tenant under Muhammad Hussain and his brothers. Both the appli cations were accepted and ejectment of. Muhammad Hussain and his brothers as well as of Sardara was ordered. Appeals against these orders were dismissed and revision applications to the High Court met the same fate. The suit out of which this appeal arises has been filed by Muhammad Hussain and others for a declaration that they are the owners of the katri in respect of which the Applications for ejectment under the Urban Rent, Restriction Act had been filed. The plaintiffs in mad this suit are not only Muhammad Hussain and his brothers, sons of Khuda Bakhsh, against whom the application of Mst. Khurshid Anwar had been filed but also their mother and their sisters. The defendants are Mst. Khurshid Anwar and Mst. Sitara Jabeen. The defendants have not yet taken possession in execution of the orders of the Rent Controller.

One of the pleas taken by the defendants was that the suit was not maintainable in view of the order of the Rent Controller which order had been upheld by the District Judge. The trial Court gave effect to this plea and dismissed the suit. On appeal the learned Senior Civil judge came to a contrary conclusion and remanded the case for decision on merits.

Learned counsel for the appellants urged before me that the suit is barred by res‑judicata. He says the question as to ownership had been agitated by the plaintiff‑respondents before the Rent Controller and the parties had had a full contest and that the matter cannot be re-agitated now in the ordinary Civil Courts.

The Rent Controller is admittedly not a Court vide Corporation of the City of Lahore v. Fahmida Begum (P L D 1952 Lah. 258 (F B) but he is a special Tribunal. The well recognise principle in respect of the judgment of a Special Tribunal is that it is res‑judicata on a matter which is within the exclusive jurisdiction of the Tribunal but that it does not in any way bind Civil Courts on matters which are not within the special jurisdiction of the tribunal. Learned Counsel for the appellants urges, however, that if for the purpose of deciding a question which relates to the special jurisdiction such tribunal finds it necessary to decide another matter that matter too becomes a matter of special jurisdiction and a decision on it binds the parties. The decision of the question of res‑judicata before me depends on whether I am to accept this proposition. I have no doubt that the proposition is insupportable. If I were to agree with the argument of the learned counsel, when an Assistant Collector of the 3rd Grade, in order to decide the liability to pay rent of a small piece of land, determines the question of inheritance to a large estate, that would be Yes‑judicata between the parties. To take an example, suppose A is the landlord of B. A dies and C files suit against B alleging that he as the heir of A is the landlord and entitled to rent from B. B too claims to be the heir of A. Now, in order to decide whether C is entitled to a decree for rent against B the Assistant Collector has to record a finding as to who is the heir and successor‑in‑interest of and the owner of the property in respect of which rent is claimed. It is essential for the Naib Tahsildar to determine this question if he is to decide the liability to pay rent. According to the contention of learned counsel for the appellants this decision would be binding between both the parties in any proceedings in any Court and the question of title once determined by the Assistant Collector will preclude any further agitation of the matter. There is no doubt that section 98 of the Punjab Tenancy Act enables Revenue Court to stay proceedings before it till a matter like this is determined by a Civil Court. But it is not bound to do so. Similarly a Small Cause Court judge may find it essential to determine questions of title to immovable property in suits for rents of houses or for com pensation in respect of the produce of immovable property. The decision would, according to learned counsel, bind the parties in all subsequent litigation. A proposition of law which if accepted would lead to such results should be sup ported by some convincing argument.

I have already dealt with this matter in Bahadur Ali v. Amir Ullah Khan (P L D 1955 Lab.140) and nothing has been said before me which will make me change my opinion. I explained in that judgment that the decision of a Court of Special Jurisdiction is binding only in matters which are within its special jurisdic tion and such judgments are binding on Civil Courts only regarding matters which cannot be adjudicated upon by Civil Courts. A good deal of authority can be quoted in support of this proposition. I may refer to Mst. Harnam Kaur v. Narain Singh and others (A I R 1935 Lab. 739), Bila v. Sultan Ali and others (45 P R 1918), Ganga Singh v. Bhan Singh and another (A I R 1926 Lab. 178), Champat v. Toti Ram (A I R 1934 Lab. 324), Muthu Vijiaraghunatha Duraisingam v. Venkatachalam Chettiar and others (A I R 1934 Mad. 551) and Jawahir v. Niaz Ahmad Khan (A I R 1942 Oudh 301). In the Dutchess of Kingstons Case (2 S M L C 679) ) the rule with respect to deci sions of Courts of special jurisdiction had been laid down in the following words:‑

"Judgment of a Court of special jurisdiction, directly upon the point is conclusive upon the same matter between the same parties coming incidentally in question in another Court for a different purpose."

It is only the decision " directly upon the point that consti tutes res‑judicata. Learned counsel for the appellants has cited before me Bajrang Bahadur Singh v. Beni Madho Bakhshi (A I R 1932 Oudh 19), Rai Singh and another v. Man Singh and others (A I R 1933 Lah. 738) and Gajendra Singh v. Durga Kumari (A I R 1925 All. .503). In the first case the decision of the Collector on a question of title while partitioning a mahal was held binding on a Civil Court. But in that case it had also been held on a consideration of the provi sions of the U. P. Land Revenue Act that the decision of question of title with respect to the property of which partition was sought was within the exclusive jurisdiction of the Collec tor (see observation at p. 204). The case is of no help to the appellants. In the Allahabad case an award was held to constitute res‑judicata and learned counsel wants to argue that if even an award can bar a fresh determination, the same should be the case with the decision of a Court of special jurisdiction. I do not think there is any analogy between an award and the decision of a Court of special jurisdiction valid award binds the parties as much as the decision of a Court of ordinary civil jurisdiction. The only case cited by learned counsel which calls for attention is Rai Singh and another v. Man Singh and others. There is no doubt that in that case a learned judge of this Court held that the decision of a question, as to the benami nature of a transaction, by the revenue Court, operates as res‑judicata in the Civil Court. With all respect I am not inclined to agree that because a matter does arise for decision in a Revenue Court its determi nation will preclude its agitation in the Civil Court. Neither on authority nor on principle can such a view be justified. Civil Courts have authority to decide all matters excepting those of which jurisdiction is barred and a decision by a Court of special jurisdiction on a matter not within its special jurisdiction cannot prevent the ordinary Civil Courts from exercising their jurisdiction. To hold that decisions on matters arising incidentally are res judicata would deprive Civil Courts of a jurisdiction they undoubtedly possess.

Learned counsel for the appellants had urged that the decision in Ghulam Muhammad v. Sheikh Zafar Ali (P L D 1951 Lah. 234) covers the present case. In that case an order for ejectment having been passed under the Rent Restriction Act, the person against whom the order was passed filed a suit in the Civil Court for a declaration that he was not a tenant of the person who had obtained the order of ejectment against him. It was held by a Division Bench of this Court that the 'order, in so far as it determined the relationship of landlord and tenant between the parties, having been given with jurisdiction, was binding on the parties. That judgment would, however, govern only a suit filed for a declaration that the plaintiff was not a tenant. Such a suit would, in accordance with that judgment, be not compe tent because the question of relationship of landlord and tenant between the parties is finally decided by a Rent Con troller and under section 15 (4) of the Urban Rent Restriction Act the order is not liable to be challenged in any Court. In the present suit the declaration asked for relates only to the title of the plaintiff and not to the non‑existence of the relation ship of landlord and tenant.

Although I disagree with the learned counsel for the appellant as to the applicability of the rule of res‑judicata, I am of the opinion that the present suit is partly barred on account of the doctrine of estoppel (I gave the parties an opportunity of arguing the question before me). Under section 116 of the Evidence Act a tenant cannot during the pendency of the tenancy deny the title of his landlord. That the male plaintiffs in they present case have been and are tenants of the defendants in respect of a part of the katri in dispute stands established by the order of the Rent Controller whose decision is to this extent binding on the parties. The order for ejectment has not as yet been executed. The authorities under section 116 of the Evidence Act are unanimous that so long as a tenant does not surrender possession, his tenancy continues for the purpose of this section. It is obvious, therefore, that those plaintiffs against whom an order for ejectment has been passed are not entitled to bring a suit for a declaration as to owner ship of the property with respect to which the order for ejectment was passed, till they have first surrendered posses sion. The result would be that the suit of the male plaintiffs Muhammad Hussain, Muhammad Rafiq and Muhammad Sharif is not competent in respect of rooms B3, B6; B7 and B8 regarding which the order of ejectment has been passed against them. With respect to those three rooms in respect of which an order for ejectment had been passed against Sardara, the suit would not be competent by any of the plaintiffs if they have got. into possession in collusion with Sardara, as Sardara himself would not be entitled to challenge the title of the defendants. A person who enters into possession with the permission, connivance or collusion of another would not be in a better position than that other and would suffer from the same disability from which that other suffers. If it were proved, therefore, that the plaintiffs or any of them were in possession of the rooms previously occupied by Sardara with his permission, connivance or collusion, their suit with respect to that part of the property would also be not maintainable.

As regards the female plaintiffs, they can of course file a suit with respect to that portion of the katri which was not the subject‑matter of the proceedings before the Rent Controller at all. With respect to those portions which were the subject matter of those proceedings, their suit too will not be maintainable if they have come into possession in collusion with Muhammad Hussain, Muhammad Rafiq, Muhammad Sharif or Sardara. The questions of collusion, permission or connivance are, however, questions of fact and before the suits can be dismissed on this ground, proper issues have to be framed and the matter has to be decided after recording of evidence.

The result is that I dismiss the suit of Muhammad Hussain, Muhammad Sharif and Muhammad Rafiq plaintiffs in respect of rooms B3, B6, B7 and B8. The suit of all the plaintiffs in so far as it relates to that part of the katri which was not the subject‑matter of the proceedings before the Rent Controller is not liable to be dismissed on this ground. So far as the suit of the plaintiffs with respect to the part which was in occupation of Sardara is concerned, the Court will frame an issue and determine the question as to whether the plaintiffs or any of them have entered into possession with the permission, connivance or collusion of Sardara. So far as the suit of the female plaintiffs with respect to rooms B3, B6, B7 and B8 is concerned an issue should be framed as to whether female plaintiffs had entered into possession with the permission, connivance or collusion of the male plaintiffs.

This appeal is accepted. The suit of the plaintiffs Muhammad Sharif, Muhammad Rafiq and Muhammad Hussain with respect to rooms B3, B6, B7 and B8 is dismissed and the case remanded for decision in the light of what has been stated above. The parties will bear their own costs of this appeal.

A. H. Appeal accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.