ACHHAR SINGH Vs. SHRIMATI KARTAR KAUR

JUDGEMENT

(1.) This is a reference under section 100 of the Punjab Tenancy Act (No. 16) of 1887, by the learned District Judge of Gurdaspur, and the facts, out of which it arises, are as below.

(2.) On September 15, 1955, the plaintiffs brought a suit for declaration against Kartar Kaur, defendant No. 1, seeking declaration, according to the heading in the plaint, that she has not occupancy tenancy rights in field No. 301 situate in the area of village Bhua in Pathankot Tahsil of Gurdaspur District. There is defendant No. 2 named Jaimal Singh, who has been added as a party simply in the capacity of a pro forma defendant. The plaintiffs alleged that they and one Allah Bux, a muslim, were the owners and landlords of the land, of which Jaimal Singh, father of defendant No. 1, was the occupancy tenant. The land is a garden. It appears that some time before 1931 the occupancy tenant, Jaimal Singh, died without leaving a widow or any male issue. In that year defendant No. 1 brought a declaratory suit against the plaintiffs and the Muslim owner that she was the sole owner of the garden. The parties compromised on October 3, 1932, whereby they agreed that defendant No. 1 would remain in possession of the garden for life paying to the plaintiffs and the Muslim owner half of the produce of the garden as batai (rent), and that defendant No. 1 would be recorded in the revenue records as an occupancy tenant of the garden under section 6 of the Punjab Tenancy Act of 1887. Undoubtedly, she was so recorded in the revenue records. The plaintiffs have further averred in the plaint that it was a technical and a legal mistake that defendant No. 1 was described as occupancy tenant in the revenue records, when, in fact, such was not the intention of the parties. Their true intention was that defendant No. 1 would remain in possession of the garden for life as pattadar and that the statement in the compromise between the parties that defendant No. 1 would remain in possession of the garden as an occupancy tenant under section 6 of the Punjab Tenancy Act of 1887 does not really indicate the true intention of the parties. They then say that defendant No. 1 is in possession of the garden, according to the intention of the parties, as a pattadar for life. The plaintiffs asked defendant No. 1 to accept the correctness of this position, but she refused, saying that under the provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act (No. 8) of 1953 she has become full owner of the garden. They also say that even if defendant No. 1 is to be considered as an occupancy tenant under them, section 9 of Punjab Act No. 8 of 1953 bars the vesting of ownership rights in her. In the prayer clause the plaintiffs say that a declaration be given to them that defendant No. 1 is not the occupancy tenant of the garden, or, in the alternative, even if she is the occupancy tenant of the garden, such rights cannot be converted into ownership rights in her favour. The simple defence of defendant No. 1 was that she has become owner of the garden under section 3 of Punjab Act No. 8 of 1953.

(3.) The suit was instituted in the Court of the Assistant Collector, First Grade, Pathankot, who dismissed it. The plaintiffs went in appeal to the Collector of Gurdaspur and the learned Collector came to the conclusion that the nature of the suit in substance was whether or not defendant No. 1 has become owner of the garden and so it is triable by a civil Court and not a revenue Court. The plaint was accordingly returned to the plaintiffs for presentation to the Court having jurisdiction. The plaintiffs then presented the plaint in the Court of the Subordinate Judge at Pathankot. The trial Judge dismissed the suit of the plaintiffs on the ground that defendant No. 1 has become owner of the land under section 3 of Punjab Act No. 8 of 1953. Against the decree the plaintiffs again went in appeal to the District Judge of Gurdaspur, who has made this reference, as already stated, with the recommendation that the suit is in fact triable by a revenue Court, and not by a civil Court, and so the decree of the Subordinate Judge be registered as the decree of the Assistant Collector, First Grade, of Gurdaspur. He proceeds to this decision upon the opinion that the suit either directly or necessarily involves the decision of the question whether or not defendant No. 1 is the occupancy tenant of the garden. Such a suit, so he seems to think, falls under section 77(3), Second Group (d), of the Punjab Tenancy Act of 1887, being a suit by the landlords to prove that defendant No. 1 has no right of occupancy in the garden. He explains first that the suit in so many words seeks declaration that defendant No. 1 is not the occupancy tenant of the garden, and, secondly, that, in any case, even if it is read as a suit for declaration that defendant No. 1 has not become the owner of the garden, such a declaration cannot be given without a finding that she is or is not the occupancy tenant of the garden. While the learned counsel for the plaintiffs argues that this approach of the learned District Judge is not sound, for the substance of the suit really is whether or not defendant No. 1 is the owner of the garden and a question of title like this is one for the decision of a civil Court and not that of a revenue Court the position that the learned counsel for defendant No. 1 takes is this that the suit, framed as it is, seeks declaration that defendant No. 1 has no right of occupancy tenancy in the garden and as such it squarely falls under clause (d) of the second group of sub-section (3) of section 77 of the Punjab Tenancy Act, 1887 .