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Civil Petition for Special Leave to Appeal No. 85 of 1975, decided on 25th March 1980.

---S. 77, second group-Cause of action of petitioner in suit that he was tenant and, therefore, could not be evicted from land in dispute--Held, such suit hit by second group of S. 77 irrespective of fact whether suit falls under cl. (a) or (f) thereof.

Mst. Zainab and others v. Fazal Dad and others P. L D 1966 Lah. 1050 not relevant.

-- Question whether suit should have been filed in Revenue Court or in civil Court-Held, a question of law-Order of High Court declaring correct law-Cannot be taken exception to.-[Question of law].

Iqbal Khalid Mina, Advocate and M. A. Qadri, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing : 22nd March 1980.

-The dispute in this petition for leave relates to agricultural land, and, according to the petitioner, they have filed a suit in the Court of the Civil Judge, Lyallpur, for a permanent injunction to retrain the respondents from dispossessing them. Together with the suit, they had applied for on interim injunction and their application was allowed by the trial Court on 7-1-1974, because the trial Court accepted their contention that they were tenants of the land in dispute. The respondents filed an appeal against this order in the District Court, which was allowed, therefore, the petitioners filed a revision in the Lahore High Court, which was dismissed in limine. Hence this petition for leave.

Rana, J. dismissed the revision on the ground that the suit was barred under the Punjab Tenancy Act, and in this connection, he observed :-

"It is admitted in the plaint that the land on which the petitioners claimed to be the tenants is agricultural land and the relationship of the landlord and tenants has been made the basis for the purposes of this suit. This being the position the suit was maintainable in a Revenue Court having its territorial jurisdiction under section 77 second group, clause (1) of the Punjab Tenancy Act."

Learned counsel submitted that the learned Judge had erred in law in holding that the jurisdiction of the civil Courts to entertain the suit of the petitioners was barred and in support of his contention he relied on a judgment in Mst. Zainab and others v. Fazal Dad and others (P L D 1966 Lah. 1050). But the judgment cited has no relevance, because it refers to a suit in which the plaintiff had founded his cause of action on trespass. On the other hand. It is clear that the cause of action of the petitioners in the instant case is that they are tenants and, therefore, they cannot be evicted from the land in the suit. Now, as rightly held by the learned Judge, their suit is hit by the second group of section 77 of the Punjab Tenancy Act and nothing turns on the question whether the suit would fall under clause (a) or (f) of this second group.

The only other group on which the judgment under appeal was criticised was that the learned Judges had prejudged the case of the parties and sealed the fate of the suit in the trial Court, but the question whether the suit should have been filed in the revenue Courts or in the civil Courts was a question of law and as the petitioners had insisted on agitating their claim in the High Court. It became the duty of the High Court to declare the correct law which it has done, therefore, no exception can be taken to the judgment under appeal.

The petition is without merit and is dismissed.

Petition dismissed.

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