NIRANJAN LAL Vs. SIRIA

JUDGEMENT

(1.) The facts that gave rise to the above five civil references under Section 99 of the Punjab Tenancy Act by the Assistant Collector, Narnaul, through the Commissioner, Patiala, & East Punjab States Union, are identical. Niranjan Lal and others brought five suits against different sets of defendants for possession of separate plots of agricultural land on the allegation that they were the owners and that the defendants who had no concern with the land had wrongfully taken possession of it and got themselves entered as tenants-at-will to the revenue records. The plea of the defendants in each of the suits was that they were occupancy tenants of the land & according to law the Plaintiffs had no right to dispossess them. They further contended that the question involving the determination of their rights could be tried only by a revenue Court and hence the civil Court had no jurisdiction to try the suits. A preliminary issue "whether the Court had no jurisdiction to hear the suits" was framed and decided against the Plaintiffs. The learned Sub-Judge taking his stand on the proviso to Section 77(3) of the Punjab Tenancy Act directed the records to be sent to the Collector for transferring the cases to a revenue Court of competent Jurisdiction. The cases having been transferred to the Assistant Collector, Narnaul, he has made these references on the ground that since the question of jurisdiction is to be determined with reference to the nature of the suit and not on the pleas taken by the defendants and since the suits were for possession of land and not to establish a claim to a right of occupancy or to prove that a tenant has not such a right, they were exclusively triable by a civil Court. My learned brother Hon'ble the Chief Justice has referred these cases to a Division Bench because the question involved is not only important but arises very frequently in cases of this kind.

(2.) Mr. Ram Niwas, the learned Counsel for the Plaintiffs, urged that since the proviso to Sub-section 3 of Section 77 of the Punjab Tenancy Act, which was inserted by a subsequent amendment of the Act by the Punjab Act (No. 3 of 1912), was not adopted by the erstwhile Patiala State to which these cases relate and the law in the Union was exactly the same as it was in the Punjab prior to the amendment, jurisdiction of the Court should be determined solely on the allegations in the plaint and no notice whatsoever should be taken of the plea raised by the Defendant as was held by a Full Bench of the Punjab Chief Court in- 'Haji Mohd. Bakhsh V/s. Bhagwan Das' 76 PunRe 1909 (A). The Punjab Tenancy Act of 1887 was enforced mutatis mutandis in the erstwhile Patiala State on 1st Asoj, Sambat 1958 corresponding to 16-8-1901 (A.D.), i.e., prior to its amendment; in 1912, and it is conceded by Shri P.L. Handa, the learned Counsel for the defendants, that the amendment was never adopted in the said State. Our office and the Law Department as well have not been able to show that any such proviso was ever added to the Section by any subsequent amendment of the Act in the State. By virtue of Article 3 of Ordinance 16 of 2005 (Bk), the law in the Union is to be the same as was in force in the erstwhile Patiala State. Section 77 of the Punjab Tenancy Act has,' therefore, to be applied to these cases without the said proviso inserted by Act 3 of 1912. Now Section 77(3) reads as follows:

(3.) First part of the sub-section takes away the jurisdiction of civil Courts to entertain and decide suits which fall under one or more of the clauses attached to it because it specifically provides that they shall be instituted in and heard and determined by revenue Courts. Its second part bars civil Courts to take cognizance of the dispute or matter with respect to which any such suit might be brought in a revenue Court. Civil Courts shall, thus refuse to entertain a suit which falls under one of the categories mentioned in the section but if in a suit which, as initially instituted, does not fall under any of those categories and is, therefore, cognizable by a civil Court, either of the parties during its trial takes up a plea with respect to which any suit might be brought by him in a revenue Court, second part of the sub-section enjoins that the civil Court shall refuse to take cognizance of and deter that plea. The obvious result is that in a case like this the Court shall proceed on to hear and decide the suit as if no such plea was raised & leave the party to get it settled by a revenue Court. This is the plain meaning of Section 77(3) as it stood in the original Act without the proviso added to it in 1912. Now, it is the character of a suit as originally framed and presented to the Court that will determine the nature of the suit and not the defence that may be set up or the character which it may assume in the course of its trial., The present suits are for possession of land of which the Plaintiffs allege themselves the owners & the defendants as mere trespassers. The suits are not by a landlord to prove that the defendant, a tenant, has no right of occupancy in the land nor are they suits by a landlord to eject a tenant. The suits thus do not fall under clause 'd' or 'e' or under any other clause of Section 77(3); and cannot, therefore, be thrown out by a civil, Court as exclusively triable by a revenue Court under the first part of the sub-section. The defendants, however, contested the suits on the ground that they had been in possession of the land as tenants for more than half a century and since they had thereby acquired occupancy rights they could not now be ousted. The defendants are admittedly in possession of the land and they allege themselves to be holding as tenants under the; Plaintiffs. To establish a claim to a right of occupancy they could bring a suit in a revenue Court as provided by Clause (d) of the sub-section; and unless they had done so and succeeded in the suit, this plea of theirs could not be entertained by the civil Court. The second part of Sub-section (3) stand in the way of the civil Court to take cognizance of the plea raised by them. The only course open for the civil Court would be to proceed on with the suit ignoring the defendants plea.