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Civil Revision (formerly Regular Second Appeal) No. 165 of 1956, decided on 4th December 1962.

S. 100 [S. 115 after amendment of 1962]‑Mere fallacy in appraising evidence on facts, or an erroneous finding of fact, however grave and "inexcusable" Second appeal not competent‑[Durga Chaudhrani v. Jawahar Singh Chaudhri I L R 18 Cal. 23 (P C) ; Wali Muhammad v. Muhammad Bakhsh A I R 1930 P C 91 and Abdul Majid v. Ghulam Ahmad P L D 1953 F C 38 ref.].

S. 100 [S. 115 after amendment of 1962]‑Second appeal‑Documents claimed to have been referred to by counsel before lower appellate Court but not considered in judgment of that Court‑Considered by High Court in second appeal.

S. 39‑Denial of landlord's title does not entail forfeiture of occupancy rights --Such rights cannot be forfeited on any ground other than those specified in S. 39‑[Dabiruddin and others v. Abdur Rahim and others I L R (1890) 17, Cal. 196 ; Dhora Kairi v. Ram Jawan Kairi Mahton and others I L R (1893) 20 Cal. 101 and Fakir v. Wazir Khan (1918) 32 P R 1918 ref.].

S. 9‑Tenant's posses sion extending over a "few decades"‑Does not confer occupancy rights on tenant.

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---‑Plea of jurisdiction (that suit was cognizable by Revenue Court and not by Civil Court)‑Not raised in trial or lower appellate Courts‑Not raised in grounds of second appeal in High Court‑Allowed to be raised in arguments where plea could be decided without calling for any "further evidence".

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-----S. 77 (3) (d)‑Suit to establish or disprove a right of occupancy‑Cognizable by Revenue Court only when relationship of landlord and tenant is admitted‑Owner's suit to eject defendants as trespassers Defendants pleading adverse possession; in alternative status as occupancy tenants‑Suit, held, cognizable by Civil Court.

Clause (d) of subsection (3) of section 77, Punjab Tenancy Act, 1887, applies only to those cases in which the relationship of landlord and tenant is admitted and the object of the suit is to determine the nature of the tenancy, i.e., whether the status of the tenant is covered by sections 5, 6, 7 or 8 of the Act. Where the point for determination was not the nature of the tenancy, but whether the defendants in fact are the owners of the property through adverse possession and in the alternative have acquired the status of occupancy tenants.

Held, that the suit was rightly taken cognizance of by the Civil Court.

Baru and others v. Niadar and others A I R 1942 Lah. 217 ; Shayam Singh v. Amarjeet Singh I L R 12 Lah. 111 ; Mewa Singh v. Nathu 22 P R 1894 ; Wazeera v. Harjalu 160 P R 1890 ; Amar Nath and another v. Raghpat Rai 101 P R 1918 and Jai Karan and others v. Nathu Ram and another A I R 1926 Lah. 338 ref.

Khalilur Rahman for Appellants.

Rafiq Ahmad Khan Bangesh for Respondents.

Dates of hearing : 8th, 9th, 13th and 14th November 1962.

This second appeal now to be treated as a revision petition under the amended law has arisen in the following circumstances. The respondents Nos. 1 to 6 brought a suit for possession of 11 kanals and 17 marlas of land in dispute against the petitioners on the basis of their title and alleged that petitioner No. 1 was in permissive possession of the land in dispute on account of his relationship with the plaintiffs and that about a month prior to the institution of the suit petitioner No. 1 denied the ownership of the plaintiffs over the land in dispute and had joined with him defendants Nos. 2 and 3 in resisting the claim of the respondents. The defendants‑petitioners resisted the suit, denied the title of plaintiff‑respondents and pleaded adverse possession. The trial Court, by its judgment and decree dated the 5th of May 1953, dismissed the suit of the plaintiffs by holding that the petitioners were in adverse possession. The plaintiff‑respondents went in appeal and the learned Senior Civil Judge, by his order dated the 7th of January 1954, accepted the appeal, set aside the judgment and decree dated the 5th of May 1953, and remanded the case to the learned Civil Judge with the direction that defendants Nos. 1 to 3 be allowed to plead in the alternative that they were the occupancy tenants of the land in dispute and had become owners of it on account of the amended law. Defendants, in their amended written statement dated the 4th of March 1954, pleaded that they had been in adverse possession for more than one hundred years and their possession harked back to their forefathers. It was further pleaded that if it be held that they were not in adverse possession, then, in the alternative, they were in possession of the land in dispute as occupancy tenants. This plea was based on the allegation that they and their ancestors had not paid the respondents any rent and such tenants by virtue of the latest law had become the owners of the land. Reference was made to section 14 of the Tenancy Act which was added by an amendment in 1952. Several issues were framed, but I am concerned only with issues Nos. 3 and 5. Issue No. 3 was :‑

"Are defendants Nos. 1 to 3 in adverse possession of the land in dispute for a period of more than twelve years "

Issue No. 5 ran as follows :‑

"In case issue No. 3 is decided in the negative, whether the defendants Nos. 1 to 3 are the occupancy tenants of the land in dispute paying no rent "

2. The trial Court found both the issues against the defendant‑petitioners and decreed the suit. In appeal before the learned Senior Civil Judge, invested with enhanced appellate powers, finding on issue No. 5 was only challenged. The learned Senior Civil Judge, by dismissing the appeal, affirmed the decree of the learned trial Court. The petitioners, consequently, lodged this second appeal and challenged the finding of the first appellate Court on the ground that judgments (Exhs. D/21 and D/22) had not been considered by the first appellate Court at all and the judgments (Exhs. D/23 and D/24) had not been properly considered.

3. A preliminary objection was raised on behalf of the respondents that the question involved in the case was purely one of fact and that under section 100 of the Code of Civil Procedure, the High Court had no jurisdiction to upset the finding of the Senior Civil Judge that the defendant‑petitioners Nos. 1 to 3 were not the occupancy tenants of the land in dispute paying no rent therefore.

4. The trial Court in deciding issue No. 5 had taken into consideration Exh. D/21, copy of the decree sheet dated the 11th of December 1893, In re : Jawahar v. Mahi, in a suit to contest the liability for ejectment; Exh. D/22, a copy of judgment dated the 30th of June 1895, In re: Jawahar v. Allah Bakhsh etc., again a suit for contesting the liability to ejectment; Exh. D/23, a copy of the judgment dated 26th October 1905, In re : Nabi Bakhsh v. Allah Bakhsh etc., in an appeal from the order of Assistant Collector First Grade, dismissing the plaintiff's claim for establishing right of occupancy, and Exh. D/24, copy of the order dated the 16th of November 1905, in re: Nabi Bakhsh v. Allah Bakhsh etc.. in an appeal from the order of Assistant Collector First Grade dismissing the plaintiff's claim for establishing the rights of the occupancy. It was held by him that these judgments did not in any way establish that they related to the land in dispute. The learned Senior Civil Judge, on appeal, also held that the defendants failed to prove that the judgments Exhs. D/23 and D/2I related to the land in dispute.

5. The learned counsel for the petitioners, in answer to preliminary objection, contended that the second appeal was competent and urged that the first appellate Court had failed to appreciate correctly and properly the judgments Exhs. D/23 and D/24. However, when specifically asked to do so, he could not point out anything in the two judgments which was relevant to the point at issue and which had not been correctly appreciated by the learned Senior Civil Judge. Moreover, mere fallacy in appraising the evidence as to facts has never been held to be an error of law justifying interference in second appeal. This proposition was clearly laid down in Durga Chaudhrani v. Jawahar Singh Cnaudhri (I L R 18 Cal. 23(PC)), Wali Muhammad v. Muhammad Bakhsh (A I R 1930 PC 91) and Abdul Majid v. Ghulam Ahmad (P L D 1953 F C 38). I have no jurisdiction. to entertain a second appeal on the ground of an erroneous finding of fact, however grave and inexcusable the error may seem to be, and I am bound to accept as final the finding of fact arrived at by the lower appellate Court.

6. It was next argued that the first appellate Court com mitted an error in procedure provided by law inasmuch as, judgments Exhs. D/21 and D/22 were not considered by the: learned Senior Civil Judge and this resulted in an erroneous decision of the case on merits. There is no reference in the judgment under appeal to the judgments Exhs. D/21 and D/22. It might as well be that no reference was made to them and, as such, the learned Senior Civil Judge was not called upon to consider them in the adjudication of the matter. Since the matter is not free from doubt, and the learned counsel for the appellants is insistent that reliance was placed on judgments Exhs. D/21 and D/22 before the learned Senior Civil Judge, I have thought it proper to have the matter examined in the light of these documents to see if their reading would, in any manner have affected the decision of the first appellate Court.

7. Learned counsel for the respondents, however, argued that even if it be assumed that the petitioners were occupancy tenants then too, by virtue of the fact that they disclaimed the title of the landlord and clamed to be the owners, they forfeited their tenancy. Reliance was placed on Bhani v. Bhag Mal (65 P R 1885), 5 Sheikh Miadhar v. Rajani Kanta Ray (5 I C 708) and Shashi Bhusan Mandal v. Ram Sebak Mandal and others (A I R 1915 Cal. 71 (2)). I do not agree with the contention of the learned counsel for the respondents and the decisions cited by him are of no help to him. In Bhani v. Bhag Mal it was held:‑

"That an occupancy tenant who occupied a portion of the shamilat land with the consent and acquiescence of the proprietors for agricultural purposes cannot be disturbed in leis possession so long as he remains a tenant in the village and uses the site for the purposes for which it was given ; but if he diverts the suit (land) to other purposes, as for instance, to build upon, and disclaiming the title of the proprietors sets up an adverse title in himself, he forfeits his rights of user and is liable to ejectment at the suit of the proprietors."

This case does not lend support to his contention because one of the grounds for ejectment specified in section 39, Tenancy Act, is the use of the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he held it. In Sheikh Miadhar v. Rajani Kanta Ray, the tenant in a suit for arrears of rent against him pleaded that he was not the tenant of the plaintiff and that he held the land under a third party. On that defence, the suit was dismissed. The plaintiff then sued to recover the land on the ground that the defendant was a trespasser. It was held that defendant, in such a case, is debarred from again pleading his tenancy and claiming to hold possession on that ground. Facts in Shashi Bhusan Mandal v. Ram Sabak Mandal and others were that in a previous suit for rent by plaintiff against the defendant, the latter successfully pleaded that he was not a tenant of the plaintiff and the plea was accepted by the Court with the result that the suit for rent was dismissed. In a subsequent suit by the plaintiff for declaration of title and recovery of possession, the defendant was not permitted to take up an inconsistent plea and to urge that he was a tenant who should have been made liable for rent in the previous litigation contrary to his false defence. 1n both these Calcutta cases, the tenants had raised the plea successfully and the landlords' suits for rent had been dismissed. The tenants were not permitted to take up an inconsistent plea in subsequent litigation. These decisions in no way hold that the repudiation by the occupancy tenant of his landlord's title involves forfeiture of the tenant's rights the only ground, on which a tenant holding occupancy rights in the Punjab, can be held to forfeit those rights and be liable to ejectment are given in section 39 (Punjab Tenancy Act, XVI of 1887). The section is reproduced in extenso :‑

"(1) A tenant having a right of occupancy shall be liable to be ejected from his tenancy on any of the following grounds, namely:‑

(a) that he has used the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he held it;

(b) where rent is payable in kind, that he has without sufficient cause failed to cultivate that land in the manner or to the extent customary in the locality in which the land is situate ;

(c) that a decree for an arrear of rent in respect of the tenancy has been passed against him and remains un satisfied.

(2) For the purpose of this section a muqarraridar shall be deemed to be a tenant having a right of occupancy."

The denial of title is not a ground mentioned therein to make an occupancy tenant liable to ejectment. In Dabiruddi and other v. Abdur Rahim and others (I L R (1890) 17 Cal. 196), it was held that before the Bengal Tenancy Act came on the statute book, a denial of his landlord's title created a forfeiture but that since the passing of that Act, in any case, to which it applied, there could not be any eviction on the ground of forfeiture incurred by denying the title of the landlord that being not the ground enumerated in the Act. This decision was followed in Dhora Kairi v. Ram Jawan Kairi Mahton and others (I L R (1893) 20 Cal. 101). In this case the plaintiff sued to eject the defendant from certain land alleging that it formed part of their holding, and that the defendant was their sub‑tenant, the defendant denied the plaintiff's title and set up the title of a third person averse to that of the plaintiff. The lower appellate Court found that the defendant was the plaintiff's tenant and both the lower Courts held that the defendant by denying the title of his landlord had forfeited his rights as a tenant and was, therefore, liable to be treated as trespasser and as such, to be evicted without notice. It was held that in all cases to which the Bengal Tenancy Act applied, there could be no eviction on the ground of forfeiture incurred by denying the title of the landlord that being not a ground enunciated in the Act. The question whether the denial of the landlord's title be held to cause the forfeiture of the tenant's occupancy rights, came up also for consideration in Fakir v. Wazir Khan ((1918) 32 P R 1918). The landlord in this case filed a suit for enhancement of rent. The occupancy tenants denied the relationship of landlord and tenant and claimed to be full owners. The Revenue Court thereon referred the parties to a Civil Court and the plaintiffs relying on the denial of the defendants' occupancy status sued for their ejectment on the ground that they were trespassers. The defendants then admitted that they had only an occupancy status. It was held that the denial of the landlord's title should not, in the circumstances of the case, be held to cause the forfeiture of the tenant's occupancy rights. I, therefore, find no force in the contention raised by the learned counsel and am of the opinion that a forfeiture of the occupancy right cannot take place on any grounds other than those specified in section 39.

8. The learned counsel for the petitioners took me through the entire evidence, but was not able to connect the land in dispute with the land which was the subject‑matter of litigation in judgments Exhs. D/21, D/22, D,/23 and D/24. He, therefore, himself in the end conceded that he could not prove that these judgments related to the land in dispute.

9. It was next contended that the appellants had been in possession of the land in dispute for a few decades and since they paid no rent therefore they could assume the status of occupancy tenants. Section 9 of the Punjab Tenancy Act clearly lays down that no tenant shall acquire a right of occupancy by mete lapse of time. The appellants, even if they had been in possession for long, could not, in view of this provision of law, become the occupancy tenants. The fact of the matter is that the appellants are being shown in the revenue records as tenants‑at‑will and no effort was made by them at any time to have these entries changed. The jamabandi Exh. P/8 had been prepared after the consolidation proceedings and this also shows the appellants to be tenants‑at‑will. This would clearly imply that they did not claim the occupancy tenancy even during the consolidation proceedings. The defendant -petitioners could not prove by the evidence on record that they were the occupancy tenants of the land in dispute.

10. The petitioners' counsel then contended that the Civil Courts had no jurisdiction to try this suit. This question was not raised before the trial Court. The reason for such a reticence is not far to seek. The respondents had pleaded adverse possession and in the alternative they claimed occupancy tenancy. The sheet‑anchor of their case was the plea of adverse possession. They seemed to be conscious of it and, therefore, did not intentionally object to the jurisdiction of the Civil Court because such a plea could be adjudicated upon only by a Civil Court. The plea of occupancy tenancy was only in the alternative but this undoubtedly was inconsistent with the claim for ownership on the basis of adverse possession. Inconsistent pleas are not prohibited under law, but these two pleas, in the present case, were not only inconsistent but mutually destructive. No objection under the circumstances, it seems, was taken as to jurisdiction before the trial Court. In the appeal by the defendant‑petitioners before the learned Senior Civil Judge, the question of jurisdiction was neither raised nor argued at the Bar. In the memorandum of appeal filed in this Court, the question of jurisdiction was not raised, but at the hearing Mr. Khalilur Rehman, Advocate asked to be allowed to argue it as an additional ground. It was objected to by the learned counsel for the respondents. Since the plea related to juris diction and could be decided with reference to the facts on the record without calling for any further evidence, there could be no legal objection to its being raised in the second appeal. I, therefore, permitted the petitioners to raise it.

11. In support of this contention that the suit was cog nizable by the Revenue Courts only, learned counsel for respon dents referred me to clause (d), subsection (3), section 77, Punjab Tenancy Act, and the proviso to that subsection. The subsection and the proviso read as follows:‑

"(3) The following suits shall be instituted in and heard and determined by Revenue Courts and no other Court shall take cognizance of any disputes or matter with respect to which any such. suit might be instituted :‑

(d) Suits by a tenant to establish a claim to a right of occupancy, or by a landlord to prove that a tenant has no such right, 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 parti culars required by Order VII, rule 10, Civil Procedure Code, and return the plaint for presentation to the Collector."

12. The plaintiffs had not instituted the suit claiming that the defendants had no such right, but the defendants themselves, in their written pleas, wanted to establish a claim to right of occupancy. He invoked the proviso in support of his contention and urged that in this suit it was necessary to decide a matter which under clause (d) could be heard and determined only by a Revenue Court. This proviso to subsection (3) was enacted by Punjab Act III of 1912. Before its enactment, Civil Courts were prohibited from trying those suits only in which the question raised in the plaint ex facie fell within one or other of the clauses of subsection (3), section 77 of the Punjab Tenancy Act. The effect of the proviso is that the jurisdiction of Civil Courts is now barred in those cases also which, on the averments in the plaint, are properly triable by a Civil Court, but the defendants' pleas raise questions which, under this subsection, are to be determined by Revenue Courts only. When such a plea is raised and the Court finds that it is necessary to decide it, it must stay its hand and return the plaint for presentation to a Revenue Court. A question, therefore, arises whether in the present case any such plea is raised by the defendants, which under the circumstances can be determined only by a Revenue Court. It has already been mentioned that the defendants had pleaded adverse possession as well. This issue could be decided only by a Civil Court and under no circumstance a Revenue Court was competent to adjudicate upon it. However, independent of that consideration, I am of the view that in this case neither the plaint nor the written pleas raised a question falling within clause (d) or any other clauses of subsection (3), section 77, and, therefore, the proviso does not come into operation. The plaintiffs did not admit the defendants to be their tenants. They called them trespassers. The defendants also pleaded adverse possession which means that they did not, in the first instance, consider themselves to be tenants under the plaintiffs and only, in the alternative they pleaded to be occupancy tenants of the land, but the plaintiffs did not admit them as such not even as ordinary tenants. Clause (d) applies only to those cases in which the relationship of landlord anal tenant is admitted and the object of the suit is to determine the nature of the tenancy, i.e., whether the status of the tenant is covered by section 5, 6, 7 or 8 of the Act. The point for determination in the present case is not the nature of the tenancy, but whether the defendants in fact are the owners of the property through adverse possession and in the alternative have they acquired the status of occupancy tenants. It is not a case in which the tenancy is admitted and the nature of the tenancy only is to be determined. It is clear, therefore, that bar under clause (d) of subsection (3) of section 77 is not attracted to the facts of the present case. This question stood finally resolved by a Full Bench decision in Baru and others v. Niadar and others (A I R 1942 Lah. 217), where Dalip Singh, J., observed

"As I read section 77 subsection (3) (a), which is the sub section involved, the suits contemplated by that clause are suits either by a tenant, i.e., a person who claims to be a tenant and is a tenant, to establish a claim to a right of occupancy or by a landlord, i.e., a person, who claims, or is admitted to be or is found to be the landlord, to prove, that a person admitted to be a tenant has not a right of occupancy."

In this case reliance was placed by Dalip Singh, J., on Shayam Singh v. Amarjeet Singh (I L R 12 Lah. 111) and it was observed that clause (3) of section 77 applied only when the relationship of landlord and tenant was admitted and the nature of the tenancy alone was in dispute.

13. This question was also considered as early as 1894, when it was held in Mewa Singh v. Nathu (22 P R 1894) that the admitted existence of relationship of a landlord and tenant is necessary before the suit is barred under clause (d) of subsection (3) of section 77, Punjab Tenancy Act. The facts of this case were that on the death of the tenant the plaintiff‑landlord instituted a suit for possession against the defendants alleging that they had taken possession of the land without any title. The defendants in that case claimed to be the legal representatives of the tenant and pleaded to be the tenants themselves. A plea of ouster of jurisdiction of Civil Court was taken. By repelling the contention, it was held that it was not a suit by a landlord to prove that the tenant had not a right of occupancy and the plaintiff did not allege or admit that the defendants were tenants at all, but on the contrary pleaded that they were mere trespassers. A similar view was taken in Wazeera v. Harjalu (160 P R 1890). In that case an occupancy tenant had died and his collateral heir was not given possession. He, therefore, filed a suit to recover possession of the holdings from the landlord on the plea that he was an occupancy tenant by inheritance. It was held that such a suit was cognizable by a Civil Court. This principle was further adopted in Amar Nath and another v. Raghpat Rai (101 P R 1918) and Jai Karan and others v. Nathu Ram and another (A I R 1926 Lab. 338). I have, therefore, no doubt that the suit was rightly tried in the Civil Courts.

14. An objection based on section 114 of the Punjab Tenancy Act was taken by the learned counsel for the respondents that no Court had the jurisdiction to declare any person to be occupancy tenant after Punjab Tenancy (Amendment) Act came into force in 1952. I need not examine the applicability of this provision in this case because the defendants‑appellants have failed to prove their occupancy rights in the land in dispute and the question of interpretation and application of this section, therefore, does not arise.

15. For the foregoing reasons, I would dismiss the appeal with costs throughout.

A. H. Appeal dismissed.

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