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Civil Petition for Special Leave to Appeal No. 849 of 1975, decided on 9th February, 1981.
(On petition against the judgment of the Lahore High Court dated 24-6-1975 in R. S. A. No. 392 of 1975).
----S. 9-Civil Courts, jurisdiction of-Plaintiffs (petitioners) claiming adverse possession of land in dispute--Civil Courts, held, possessed jurisdiction to decide whether their claim correct in law or not and its consequences-Contention that suit for possession having been filed against tenant of agricultural land, jurisdiction to entertain such suit vested exclusively in revenue Courts, held, not tenable in circum stances.-[Jurisdiction].
Baru and others v. Niadar and others A I R 1942 Lah. 217 held not relevant.
Raja Mahmood Akhtar, Advocate Supreme Court and Sh. Abdul Kartvr. Advocate-on-Record for Petitioners.
Ch. Akhtar, Advocate on-Record (absent) for Respondents.
Date of hearing : 8th February, 1981 (Lahore).
The learned Civil Judge, Kahuta, by his judgment and decree dated 9-10-1974 decreed the suit of Raja Khan respondent for the possession of 361 kanlas and 16 marlas of land. The learned Additional District Judge, Rawalpindi, dismissed the appeal of the petitioner and affirmed the order of the learned Civil Judge. The petitioners, therefore, filed an appeal before the Lahore High Court which was dismissed by a learned Single Judge by his order dated 24-6-1975 in limine. Hence this civil petition for special leave to appeal.
2. During the pendency of the suit Nazar sold the property to Raja and another who were substituted as the legal representatives.
3. It has been contended before us that the plaint termed the petitioners as tenants. It was filed by Nazar Hussain as the owner of the property in dispute and thus the landlord.
4. It has been urged before us that the suit for possession having been filed against tenants of agricultural land the jurisdiction to entertain and try such a suit vested exclusively in the revenue Courts. The civil Court thus, it is submitted, had no jurisdiction in the matter.
5. The relationship of landlord and tenant was denied in the written statement and adverse possession on account of ownership was pressed into service by the petitioners. They, however, urged that the jurisdiction of the Court was to be determined on the averments contained in the plaint and the mere fact that the petitioners denied to be the tenants of the plaintiff would make none the difference so far as this question is concerned.
6. This submission overlooks the fact that the plaintiff had stated in the plaint that the present petitioners were tenants-at-will of the suit land with the consent and permission of the owner "but had been claiming them selves to be the owners of the suit land after denying their tenancy and had also filed a suit for declaration." It is, therefore, incorrect to say that the suit was filed on the basis of the relationship of landlord and tenant and it is clear also from the issues framed by the learned Civil Judge none of which is relatable to the petitioners being tenants of the plaintiff.
7. Be that as it may, the fact remains that the civil Courts jurisdiction would have been ousted only if it were an agreed position between the parties that the relationship of landlord and tenant existed between them.
Not only was it not so but the plaintiff, as has been pointed out above, mad it clear in the plaint that the petitioners were claiming adverse possession of the land in dispute. Since the petitioners were claiming adverse possession the Court had to decide whether their claim was correct in law and if it was not the petitioners would not have entitled to possession as persons in adverse possession.
8. Learned counsel for the petitioners cited Baru and others v. Niadar and others (A I 3K 1942 Lah. 217), a Full Bench decision of the Lahore High Court, in support of the contention that the nature of a suit for tile purpose of determining jurisdiction has to be decided on the basis of the averments in the plaint and not on the basis of any defence that may be taken up. This ruling has no application to the facts of the present case. In the circumstances demonst rated above the plaint itself contained the averment that the petitioners were claiming adverse possession over the property in dispute.
9. This petition has no logs to stand upon and is dismissed.
Petition dismissed.
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