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Civil Appeal No. 60/10/56, decided on 9th March 1959.

S. 77 (e)‑Operates only where landlord brings suit against his tenant‑Tenant by his own conduct rendering himself trespasser‑Jurisdiction of, Revenue Court to hear such suit completely ousted [North‑West' Frontier Province Tenancy Act (XXV of 1950), S. 49 (c)].

Section 77 of the Punjab Tenancy Act which trenches on the usual jurisdiction of a Civil Court must be very strictly construed. Under section 77 (e) the only suits which are exclusively triable by the Revenue Court are those which are instituted by a landlord to eject a tenant. 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. Section 77 (e) 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 than the jurisdiction of the Revenue Court to hear such a suit is completely ousted.

162 P R 525 dissented from.

Mian Muhammad Yunis Shah for Appellants.

Ch. Muhammad Ali for Respondent

Date of hearing : 2nd March 1959.

Sarwar Shah and eight others instituted a suit for the possession of Khata No. 113, Khasra Nos. 773 and 774, measuring 95 kanals 19 marlas, against Kaloo. They alleged in the plaint that the property in dispute was shamilat‑i‑deh, and being proprietors in the village, they had a share in it. They further claimed that they were in exclusive possession of this property and had given it on lease to the defendant, on payment of a certain rent. Since 11 years, however, the defendant denied his relation ship of a non‑occupancy tenant, and he was, therefore, since then in illegal possession thereof. The defendant, in his written statement, claimed the property to be his own, having inherited it from his father, who had made it culturable. In para. 5 of the written‑statement, he said that the plaintiffs, in conspiracy with the revenue authorities, had managed to get certain entries made in the revenue papers of which they were now trying to take undue advantage.

The following six issues were framed in the case :‑

(1) Are the plaintiffs aala malikan of village Dagger Qureshi

(2) Are the plaintiffs being gala malikan of the village, owners of the land in suit

(3) Was the defendant tenant‑at‑will paying rent to the plaintiffs

(4) if issue No. 3 is proved, has the defendant remained in adverse possession for a period of twelve years upon the land in suit

(5) If issue No‑ 3 is not proved, have the plaintiffs remained its possession of the land in suit within a period of twelve years next before the institution of this suit'

(6) Relief

The learned trial Court, after discussing all the issues, granted the plaintiffs a decree for possession of the land in suit against the defendant, bulk' left the parties to bear their own costs.

On appeal, the learned lower Appellate Court set aside the decree, and held that the Civil Court had no jurisdiction to try the case, and remanded the case with a direction that the plaint should be returned to the respondents for presentation to a com petent Court. Sarwar Shah etc. feeling aggrieved, have come up on appeal to this Court.

It will be interesting to note that the learned lower Appellate Court gave a judgment on the question of the jurisdiction suo motu without having any issue been framed in that respect. Reliance in this connection was placed on 162 P R 525, in which Plowden, J., held that in a case where the plaintiff sued to eject the tenants from the land on the allegations that the land in suit had been given to the defendants for cultivation on payment of certain rent, and that they had refused to pay the same, and had set up an adverse title and refused to vacate, the suit as laid was cognizable by a Revenue Court. According to Plowden, J., the true description of the defendants, according to the allegation of the plaint was that of tenants holding over after the expiration of an agricultural year. Under section 9 of the Code of Civil Procedure, the Civil Courts have jurisdiction to try all suits of a civil nature, excepting such suits of which their cognizance is either expressly or impliedly barred. Section 77 of the Punjab Tenancy Act which trench on the usual jurisdiction of a Civil Court must be very strictly construed. Under section 77 (e), the only suits which are exclusively triable by the Revenue Court are those which are instituted by a landlord to eject a tenant. 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. In the case though defendant had originally entered into the land as a tenant of the plaintiff, he had repudiated that relationship, and hence he was simply in wrongful possession of the land. In such cases, the suit would lie in the Civil Court. I am afraid section 77 (e) 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 than the jurisdiction of the Revenue Court to hear such a suit is completely ousted. In this connection, with all respect I differ from the view expressed by Plowden, J. in the authority quoted above. A difference must always be made where the plaintiff alleges in the plaint that a certain person entered into possession of a property as a tenant and was holding over, and where the allegation is that the person entered into possession of the property as a tenant, but then sets up an hostile title to the landlord. I fail to appreciate Plowden, J's reasoning in treating the second suit as the same thing as the former. I, therefore, accept this appeal, set aside the order of the learned lower Appellate Court and remand the case for the decision of the appeal on merits, in accordance with law. There will be no order as to costs.

K. B. A.

Appeal accepted.

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