Birbal vs Udhami and Others

D.P. Sood, J.—In this Regular Second Appeal u/s 100 (old) of the CPC the sole question for determination raised by the Appellant is as to whether the civil courts have no jurisdiction to take cognizance of the suit in the facts and circumstances of the instant lis.

The facts giving rise to this appeal are that Gorkhu, alleged non-occupancy tenant sought declaration of his status against Defendant Birbal who was allegedly interfering in his possession. In addition, he also prayed that in case he is found to have been dispossessed from the suit land, then relief of possession be also given. Admittedly, as per pleadings of the Defendant, the Plaintiff was initially inducted by Shri Lachhman, maternal grand-father of Birbal, Defendant, in the year 1964 in the suit land measuring 39 kanals 15 marlas situate in Tika Kaloha, Tehsil Dehra, District Kangra. The case of the Plaintiff is that Birbal, Defendant, after retirement from the A "my in the year 1974 started interfering in his possession since October 1974. Accordingly, the Plaintiff sought the above said reliefs.

Birbal, Defendant, resisted and contested the suit by raising a preliminary objection with respect to jurisdiction of the civil court to take cognizance of the suit. On merits, he claimed that the Plaintiff was never inducted as a tenant but was cultivating the land during the absence of the Defendant for a fixed period of 10 years, as stated above, and thereafter he had relinquished the possession of the suit land in October, 1974. Accordingly, he claimed to be in possession since then.

On the pleadings of the parties, the trial court framed the following issues:

Whether this Court has no jurisdiction to try the case, if so, its effect? OPD.

Whether the Plaintiff is in possession of the suit land as tenant, if so its effect? OPP.

2A. Whether the Plaintiff handed over the possession of the suit land to the Defendant in the year 1974 as alleged, if so, what manner? OPD.

Relief.

Both the courts below held that the civil courts had the jurisdiction and the Plaintiff was inducted as a tenant over the suit land; that the Plaintiff never relinquished the tenancy land and thus entitled to relief prayed for. Obviously, as the Plaintiff was deemed to have been dispossessed during the pendency of the appeal, the learned District Judge in view of the additional prayer for relief of possession, not only upheld the judgment of the lower court but also granted the relief of possession to the Plaintiff.

On behalf of the Appellant, it is contended that even assuming the Plaintiff to be the tenant over the suit land as has been held by both the courts below, the suit is not cognizable by civil court u/s 58(3) of the Himachal Pradesh Tenancy and Land Reforms Act, 1974 (hereinafter "the Act") in view of the ultimate adjudication of relationship between the parties to the instant lis to be that of landlord and tenant.

K.D. Sood, learned Counsel for the Respondent, has contended that for a suit to be barred u/s 58(3) of the Act from the cognizance of civil courts, two conditions have to be satisfied. The first is that the suit should relate to one of the matters described in Section 58 of the Act and the second is that the existence of relationship of landlord and tenant should be admitted by the parties. If these two conditions are not satisfied then, according to him, the suit is not barred from the cognizance of civil courts. Reliance has been placed on the observations made in Shri Raja Durga Singh of Solan Vs. Tholu,

The close perusal of Section 58(3) of the Act shows that there is no clause therein providing for a suit by or against a person claiming himself to be a tenant and whose status as a tenant is not admitted by the land owner. The legislature barred only those suits from the cognizance of civil courts where there is no dispute between the parties about the relationship of landlord and tenant. It was a suit filed by the Plaintiff claiming himself to be in possession of the property as a tenant under the Defendant and Defendant had not admitted the status of the Plaintiff as such, rather, it was pleaded that the Plaintiff was not at all in possession. The provisions contained in the Punjab Tenancy Act, as applicable to Himachal Pradesh, which are parimateria with the provisions of Section 58 of the Tenancy Act came up for consideration before the Supreme Court in Shri Raja Durga Singh of Solan Vs. Tholu, . The Supreme Court observed as under:

....There is no entry or item relating to a suit by or against a person claiming to be a tenant and whose status as a tenant is not admitted by the landlord. It would, therefore, be reasonable to infer that the legislature barred only those suits from the cognizance of a civil court where there was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant....

In view of the specific pleadings and as observed by the Supreme Court in Durga Singh''s case (supra), civil court undoubtedly had jurisdiction to entertain and decide the suit. In the instant case, admittedly, both the parties are at loggerheads with respect to the status of the Plaintiff. The Plaintiff claims to be a non-occupancy tenant whereas the Defendant being the owner claims to be the owner in possession of the suit land. The point involved in the instant case is covered by the facts and circumstances of the case of Raja Durga Singh (supra). Accordingly, the point being devoid of any merit is rejected. Even otherwise, no interference is called for in the second appeal keeping in view the peculiar facts and circumstances of the case which are covered by the observations made in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, The observations, in fact, pertain to the Regular Second Appeal u/s 100 CPC prior to its amendment by CPC (Amendment) Act, 1976. Defendant Birbal has no legs to stand up irrespective of the plea of relinquishment of tenancy land by the Plaintiff in view of Section 31 of the Act.

As per the pleadings of the Defendants, the land in dispute was handed over to the Plaintiff for a fixed period of 10 years by late Shri Lachhman, maternal grand-father of Defendant Birbal on Chakota for consideration of Rs. 1,000/- in to and as per the evidence adduced the aforesaid transaction was transacted through agreement in writing. The said agreement has not been produced. The learned District Judge was absolutely right in having discarded the other pleas so raised by the Defendant for the reason that agreement aforesaid was the primary evidence and the same having not been produced, the secondary evidence cannot be led by the Defendant without seeking leave of the Court. Even otherwise, such evidence was not admissible as the period of cultivation being 10 years, the said agreement required registration and in the absence of registration, the agreement was void ab initio. Also, the revenue record constituting of jamabandis and khasra girdawari P-l to P-5 reflected the Plaintiff to be a tenant on payment of Rs. 75/- as annual rent and as such the Plaintiffs case of non-occupancy tenant over the suit land was established.

Also Section 31 of the Act pertains to relinquishment. It lays down.

Clearly, relinquishment of the tenancy land in favour of the land owner has been taken away by a mandatory provision of the Act and in case a tenant wants to make a voluntary surrender of his tenancy land, he can relinquish the said interest in favour of the Government only. The underlying object under this Section appears to be to avoid loss of tenancy land by the tenant by so called voluntary surrender in favour of the land owner. In that view of the matter the Appellant is not entitled to any relief.

As a result, this appeal is dismissed with costs and the impugned judgment and decree are upheld. The decree-sheet be prepared and the file be consigned.