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Regular Second Appeal No. 23 of 1949, decided on 17th 1950, from the order of the Additional District Judge,
, S. 77 (3) Status of parties rant in dispute‑--Jurisdiction of Civil Court
If the definitions of " tenant " and " landlord " are substi tuted 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. If, therefore, 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, 1887.
It is well settled that a provision of law which seeks to take away the jurisdiction of Civil Courts must be construed strictly, and the ousting of jurisdiction of the Civil Courts is not to be inferred until and unless the words used in the statute make it clear that the intention was to take the jurisdiction away.
, S. 42‑Suit for bare declaration‑Further relief grantable only by Revenue Court ‑Civil Court may give declaration sought for.
No doubt the proviso to section 42 of the Specific Relief Act, 1877, enacts that if a plaintiff does not seek a further relief than a mere declaration of title which is open to him, the relief for declaration is not to be granted, but the proviso cannot and does not mean that even if a further relief can be granted by another Court only, or the further relief is not open at the time when the decree is passed, the suit for a mere declaration is to be dismissed on the ground that further relief had not been asked for.
Muhammad Yaqub Ali Khan, for Appellants.
Al. Iftikhar Ali, for Respondents.
---‑One Rahim Bakhsh, who was a tenant having a right of occupancy in the land in suit and whose mother had predeceased him, died on 9th of March 1945, leaving no widow or issue, and the tenancy left by him was entered in the navies of the appellants by mutation No. 2010 on 17th of May 1946. On 16th of July 1946 the owners of the land, asserting that the defendants‑appellants had no right to succeed to Rahim, Bakhsh, instituted the suit out of which the present second appeal has arisen, claiming a decree for possession of the land, or in the alternative a declaration that the defendants were not entitled to succeed to Rahim Bakhsh and mutation No. 2020, dated 17th of May 1946 of Mauza Bhainian had been wrongly entered in their favour. The defendants‑appellants in their written statement pleaded that they were entitled to succeed to the occupancy rights left by Rahim Bakhsh and that, in any case, they, being mortgagees with possession of the land in suit for Rs. 1,500, no decree for possession could be granted to the plaintiffs. It was further pleaded that the suit in the form in which it had been instituted, could be tried by a Revenue Court only and was not cognizable by a Civil Court.
On the pleadings of the parties the trial Court framed the following two issues :‑
(1) Are the defendants not the mortgagees of the land and a suit of possession is competent in this Court
(2) Are the defendants entitled to succeed to the occupancy rights and did their common ancestor and that of Rahim Bakhsh deceased occupy the rights in dispute
At the time of arguments in the trial Court it was conceded on behalf of the plaintiffs by their learned counsel that the defendants were mortgagees with possession of the occupancy rights which had belonged to Rahim Bakhsh and a relief for possession could not, therefore, be granted by the Civil Court and the first issue was, because of the concession made by the learned counsel for the plaintiffs, decided against them. On the second issue, the finding of the trial Court was that, though the defendants and Rahim Bakhsh were proved to be descended from a common ancestor, it had not been proved that their common ancestor had held the land in suit, and, therefore the defendants were not entitled to succeed to the tenancy left by Rahim Bakhsh. In the result, the trial Court granted the plaintiffs a decree for a declaration that the defendants were not the heirs of Rahim Bakhsh in respect of the occupancy rights left by him in ‑the land in suit; and, as those right had become extinct, the mutation in favour of the defendants was wrong. The defendants appealed against the decision of the trial Court and Mr. Inayat Ullah Khan, Additional District Judge, Sialkot, who heard the appeal, agreeing with the finding of the trial Court that the common ancestor of Rahim Bakhsh and the defendants had not had the rights of occupancy in the land in suit, dismissed the appeal. The defendants have come up to this Court in second appeal.
The concurrent finding of the Court below that the common ancestor of Rahim Bakhsh and the defendants‑appellants had no rights of occupancy‑in the land in suit was not assailed by the learned counsel for the appellants presumably because, being a finding of fact, it was assailable in second appeal only if certain conditions existed, but it was strenuously urged that the suit was not cognizable by Civil Courts and that, in any case, the suit should have been dismissed.
For his contention that the Civil Courts had no jurisdiction to hear the suit, Chaudhri Muhammad Yaqub Ali Khan, the learned counsel for the appellants, relied on section 77 of the Punjab Tenancy Act, 1887, relevant parts of which are copies below :‑
Section 77.
(1) * * * * * *
(2) * * * * * *
(3) 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 such 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 "subsection 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, 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 Tenacity Act, 1887, and in other cases may send the suit to an Assistant Collector of the Ist grade for decision.
First Group.
(a) * * * *
(b) * * * *
(c) * * * *
Second Group
(d) suits 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 ;
(e) * * * *
(f) * * * *
(g) * * * *
(h) suits by a landlord to set aside a transfer made of a right of occupancy, or to dispossess a person to whom such a transfer has been made, or for both purposes ;
(i) * * * *
etc. etc. etc.
The argument of the learned counsel for the appellants was that because the defendants‑appellants had pleaded in their written statement that they had a right of occupancy in the land in suit, the suit was not cognizable by a Civil Court. The learned counsel for the plaintiffs‑respondents replied that the defendants‑appellants had not claimed in their written state ment to be tenants having a right of occupancy, but this contention overlooks paragraph 4 of the written statement. It is true that the plea about the defendants being tenants having rights of occupancy, was not in such clear words as it might have been, but reading para. 4 of the written statement with para. 4 of the plaint to which it is a reply, I have no doubt in my mind that the defendants had claimed to be tenants having rights of occupancy in the land in‑suit.
The learned counsel for the appellants relied on clause (d) in the Second Group of subsection (3) of ‑section 77 of the Punjab Tenancy Act, 1887, and urged that as a right of occu pancy had been claimed by the defendants‑appellants, the suit was cognizable by a Revenue Court and not by a Civil Court. Clause (d) relied upon by the learned counsel for the appellants applies to two clauses of suits, one being a suit by a tenant to establish a claim to a right of occupancy and the other a suit by a landlord to prove that a tenant had not such a right. Before clause (d) can apply it must be proved, if the suit falls under the first of the two above‑mentioned classes that the plaintiff is a tenant and the defendant a landlord, and if the suit falls under the second class that the plaintiff is a landlord and the defendant‑ a tenant. The relevant part of section 4 (5) of the Punjab Tenancy Act in which the term " tenant " is defined is as follows :‑
Tenant means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent of that land to that other person ; but it does not include * * * * * *
and the term " landlord " has been defined by section 4 (6) as
" a person under whom a tenant holds land and to whom the tenant is or but for a special contract would be, liable to pay rent for that land."
If the definitions of " tenant " and " landlord " are substi tuted 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. If, therefore, 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, 1887. If the plaintiffs had in the present case admitted that the defendants were their tenants but had prayed for a declaration that the defendants did not hold rights of occupancy in the land in suit, the suit would have been cognizable by a Revenue Court only, but as the defendants were not admitted to be tenants, the suit was cognisable by a Civil Court. It, is well settled that a provision of law which seeks to take, away the jurisdiction of Civil Courts must be construed strictly and the ousting of jurisdiction of the Civil Courts is not to be inferred until and unless the words used in the statute make it clear that the intention was to take the jurisdiction away. I am of, the view, therefore, that the suit was cognizable by a Civil Court.
The learned counsel for the appellants then urged that even if clause (d) in the Second Group of subsection (3) of section 77 of the Punjab Tenancy Act did not apply, the Civil Court could not decide the suit and was bound to refer it to a Revenue Court because the defendants‑appellants had in their written statement pleaded that Rahim Bakhsh had created a mortgage with possession on the land in suit in their favour, and the suit being for possession, amounted to a suit by a land lord to set aside a ‑ transfer made of a right of occupancy or to one to dispossess a person to whom such a transfer had been made, as contemplated by clause (h) in the Second Group of subsection (3) of section 77 of the Punjab Tenancy Act. The suit was not for one of the reliefs mentioned in the clause relied upon, but if the plaintiffs had insisted on being granted a decree for possession of the land in suit, it is possible that it would have been necessary to enter into the question whether or not the mortgage was ‑binding on the plaintiffs, but as the prayer for possession of the land had been withdrawn, no matter covered by section 77, Punjab Tenancy Act, 1887, fell to be decided. Proviso (1) to subsection (3) of section 77, Punjab Tenancy Act, which is relied upon by the learned counsel for the appellants, does not, in my view, require that a suit is to be sent to a Revenue Court as soon as one of the parties raises a plea containing a matter cognizable only by a Revenue Court, and I have no doubt in my mind that a suit is to be sent to the Revenue Court by the Civil Court only if it is necessary for its decision to give a finding on one of the matters which under section 77 of the Punjab Tenancy Act are cognizable only by a Revenue Court. If, however, the suit can be decided without giving a finding on a matter which section 77, Punjab Tenancy Act, takes out of the jurisdiction of the Civil Court, the suit is not to be sent to a Civil (Revenue ) Court for decision simply because the plaint or the written statement contains a reference to one of the matters which by section 77 of the Punjab Tenancy Act are within the exclusive jurisdiction of the Revenue Courts. In the present case, the declaration prayed for by the plaintiffs could be granted without entering into the question whether or not Rahim Bakhsh had created a mortgage on the land in suit, and if there were any doubts about the jurisdiction of the Civil Court, they were set at rest by the plaintiffs' withdrawing their prayer for possession.
The third contention of the learned counsel for the appellants was that, in any case, the suit merited dismissal because the plaintiffs‑respondent could have claimed possession of the land, and as they chose to give up that claim, a mere declaration could not be granted to them. No doubt the proviso to section 42 of the Specific Relief Act,. 1877, enacts that if a plaintiff does not seek a further relief than a mere declaration of title which is open to him, the relief for declaration is not to be granted, but .the proviso cannot and does not, mean that even if a further relief can be granted by another Court only, or the further relief is not open at the time when the decree is passed, the suit for a mere declaration is to be dismissed on the ground that further relief had not been asked for. In. the present case, as asserted by the defendants‑appellants, the Civil Courts could not grant the plaintiffs a decree for posses sion of the land in suit and the further relief in the shape of possession of land was not open to them, and, therefore, the proviso to section 42, Specific Relief Act, has no application. It was no doubt open to the plaintiffs to pay off the money claimed by the defendants as mortgagees of the land in suit and then claim the possession of the land, but as the circum stances were at the time of the institution and the decision of the suit, the plaintiffs could not be granted possession of the land and they cannot be penalized if the only decree that could be granted to them is one for declaration.
In the end, the learned counsel for the appellants urged that the grant of a decree for declaration being entirely dis cretionary with the Court, it should have been refused in the present case. I, however, do not see how the refusal to grant the plaintiff the decree ‑that they have been granted would have been a proper exercise of the discretion vested in the Courts below. The defendants were asserting that they were tenants having rights of occupancy in the land in suit, and if a declaration had not been granted to the plaintiffs, they would have been denied justice.
Had I entertained any doubts about the jurisdiction of the Civil Courts to hear the suit, I would have acted under section 100 of the Punjab Tenancy Act, but, in my view, the Civil Courts has jurisdiction to hear the suit and, as the decision appealed against is perfectly correct, I dismiss the appeal with costs.
K. M. A. Appeal dismissed.
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