Kabul Singh vs Sarmukh Singh (deceased) Represented by L.Rs.

J.V. Gupta, J.

The plaintiffappellant has filed this suit for possession of the agricultural land measuring 256 Kanals 13 Marlas as well as for the recovery of Rs. 19,500/ as mesne profits from the date of the institution of the suit and further mesne profits along with interest till the delivery of the possession of the land.

It was alleged in the plaint that the land originally belonged to one Tabe. On his death, it was inherited by his widow Smt. Hukman. She died on June 5, 1958. Thereafter, the land seems to have been mutated in favour of Kabul Singh, the plaintiffappellant, on the basis of the Will executed by the said Hukman in his favour. Sarmukh Singh (now deceased) defendantrespondent instituted a suit in the Court of the Subordinate Judge Jullundur for a declaration of the suit land, against Kabul Singh, plaintiffappellant. In that suit, he propounded a Will dated May 1, 1958, by Hukman superseding her earlier Will in favour of Kabul Singh. The said suit was decreed by the trial Court in favour of Sarmukh Singh but in the appeal which was filed on behalf of Kabul Singh the plaintiffappellant in present case, the appellate Court set aside the decree passed by the trial Court and dismissed his suit. The second appeal filed by Sarmukh Singh was also dismissed. During the pendency of the second appeal in the High Court Sarmukh Singh had also made an application for the grant of an ad interim injunction restraining Kabul Singh from taking possession of the suit land or interfering with his possession during the pendency of the appeal. In that application status quo was ordered to be maintained on furnishing security for mesne profits by Sarmukh Singh, Raghbir Singh, defendantrespondent furnished security on behalf of Sarmukh Singh. It is in this background that Kabul Singh, plaintiffappellant, filed the present suit for possession of the suit land as well as for the mesne profit both against Sarmukh Singh and Raghbir Singh, defendantrespondent, the surety. The suit was contested on behalf of the defendants. On the pleadings of the parties, the trial Court framed the following issues:

(1) Whether defendant No. 1 was leased out the land, in question, by Shrimati Hukman, deceased vide agreement dated March 5, 1950? If so what is its effect?

(2) Whether the plaintiff''s father Shri Gokal Singh was a consenting party to the said agreement? If so what is its effect?

(3) Whether this suit is not maintainable in the present form?

(4) Whether this Court has no jurisdiction to try this suit?

(5) If issues No. 1 is proved, whether the said agreement was never acted upon? If so, what is its effect?

(6) Whether defendant No. 1 is estopped from setting up the plea of tenancy by his act and conduct?

(7) Whether the plaintiff is entitled to any mesne profits of the land in question? If so, of what amount?

(8) Whether the plaintiff is entitled to any interest on the mesne profits? If so, of what amount and for what period?

(9) Whether defendant No. 1 has made, on the land, in question, any improvements? If so, of what value and with what effect?

The trial Court decreed the plaintiff''s suit for possession of the land, in question, against Sarmukh Singh, defendant, but dismissed it for mesne profits on the ground that the civil court had no jurisdiction to pass the decree for the same in view of the provisions of Section 77(3) of the Punjab Tenancy Act, 1887 (hereinafter called the Act).

As regards the decree for possession of the suit land, the same has become final against Sarmukh Singh (now deceased) as it was never challenged by him by way of an appeal. The present appeal has been filed by the plaintiff challenging the decree of the trial Court dismissing his suit for mesne profits. Thus, the only question involved in this appeal is: whether the suit for the recovery of mesne profits also was maintainable in the civil Court or not? As observed earlier the trial Court has dismissed the plaintiff''s suit for the recovery of mesne profits on the ground that section 77(3) of the Act was a bar to the grant of that relief as claimed by the plaintiff. Section 77(3)(a) of the Act, reads :

"77. (1)......... (2)......... (3) The following suits shall be instituted in and heard and determined by revenue Courts, and no other Court shall take cognizance of any dispute or matter with respect to which any such suit might be instituted?

Provided that

(1) Where in a suit cognizable by an instituted in a Civil Court it becomes necessary to decide any matter which can under this subsection be heard and determined only in 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 of 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. 1000/ or the matter involved is of the nature mentioned in section 77(3), first group, of the Punjab Tenancy Act, 1887, and in other cases may send the suit to an Assistant Collector of the first grade for decision.

First group (a) to (c)......................... Second Group (d) to (m) .................Third Group (n) suits by a landlord for arrears of rent or the money equivalent, or for sums recoverable under section 14, or suits for the recovery of such arrears or sums by other persons to whom a right to recover the same has been sold or otherwise transferred".

Section 14 of the Act reads:

"Any person in possession of land occupied without the consent of the landlord shall be liable to pay for the use or occupation of that land at the rate of rent payable in the preceding agricultural year, or if rent was not payable in that year, at such rate as the Court may determine to be fair and equitable."

From a reading of section 14 of the Act, it is quite obvious that it applies in the case of a person who is in possession of the land without the consent of the landlord. Under Section 4(6) of the Act, the term `landowner'' means 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. In the present case, the plea of Sarmukh Singh, defendant (now deceased) that he was a tenant on the suit land inducted by the plaintiff has not been accepted by the trial Court. His possession of the suit land has been held to be illegal and without any authority. Once, it is so held, then the provisions of section 14 are not at all attracted because in that situation, the plaintiff could not be held to be the landlord at any stage qua Sarmukh Singh, defendant. Moreover, the present suit has been filed not against Sarmukh Singh alone, but against his surety also. It has been held in Faqir Singh v. Gurbachan Singh and others, 1971 Punjab Law Journal 146, that where the plaintiff (a lessee) filed a suit in the civil Court for possession of land and recovery of mesne profits thereof alleging that defendants were trespassers on the land and had forcibly occupied it even though the land had been given to the plaintiff by the owner and this was resisted on the ground that a suit for mesne profits in respect of land did not lie in a civil Court, neither the plaintiff nor the defendants come within the definition of landlord and tenant as given in sections 4(6) and 4(5) respectively of the Act. It was, therefore, ultimately held in the above said case that the suit for mesne profits was not barred by the provisions of sections 14 and 77(3)(n) of the Act, and that the civil Court had the jurisdiction to take cognizance of the case in which mesne profits were claimed in respect of land. In this view of the matter, the approach of the trial Court is wrong and illegal and its findings under issues Nos. 3 and 4 are liable to be set aside.

Consequently, this appeal succeeds and is allowed. The decree of the trial Court dismissing the plaintiff''s suit for mesne profits is set aside and a preliminary decree is passed in his favour and against the defendants for the mesne profits. Since the amount of mesne profits has not been determined by the trial Court, it is directed to make an enquiry as to such mesne profits, as contemplated under Order XX rule 12 of the Code of Civil Procedure. After determining the said mesne profits a final decree shall be passed in respect of the mesne profits in accordance with the result of such enquiry by the trial Court. The plaintiff shall be entitled to the costs of this appeal. The parties through their counsel have been directed to appear in the trial Court on 7th October, 1982. The records of the case be sent back forthwith. C.M. No. 399CI and No. 400CI are also allowed.