Kishan Lal (died) and others vs Kurda

J.V. Gupta, J.

This is defendants'' second appeal against whom decree for declaration and possession has been passed by both the Courts below.

Agricultural land measuring 78 Bighas l biswa was under the tenancy of the plaintiff Kurda along with Pat Ram since long. The said land was owned by the Rajputs. Prior to the plaintiff his forefathers were coming in possession as tenants for the last about 100 years. Later on in the year 1956 the defendants purchased the land from the said Rajputs. It was further alleged that the defendants in collusion with the Revenue Patwari got the entries in the revenue records changed in their names with effect from Kharif 1966 to Rabi 1975. According to the plaintiff, he was in actual physical possession of the suit land uptill the crop of Rabi 1975, when he was forcibly dispossessed by the defendant. The present suit was filed on 21st July, 1975. Originally the suit was filed by Kurda and one Smt. Bodbi daughter of Pat Ram but during the pendency of the suit the name of Bodbi was dropped from the array of the plaintiffs by amendment in the plaint. The suit was contested by the defendants. They denied their having forcibly dispossessed the plaintiff. On the other hand, their case is that the plaintiff had surrendered his tenancy rights in lieu of money and had ceased to be the tenant over the land in dispute with effect from Kharif 1967. Several objections with regard to the maintainability of the suit, limitation, locus standi and the suit being bad on account of misjoinder of necessary parties and cause of action were taken. The trial Court found that Kurda plaintiff and his predecessorsininterest continued to be in possession of the suit land till Rabi 1975 and the entries in the Khasra Girdawaris and the Jamabandis from Kharif 1966 to Rabi 1976 were against the facts and wrong as alleged. It was further found that the plaintiff was forcibly dispossessed sometime in the first half of the year 1975. The entries in the revenue records which are in favour of the defendants were found to be fake and manipulated by the defendants in the collusion with the revenue employees. Under issue No. 5, which has been mainly contested in the present petition, the trial Court held that the defendants are estopped from raising objection as to the jurisdiction of the Civil Court and they cannot be allowed to take inconsistent pleas in different Courts. The principle of reprobate and approbate is squarely attracted. The plaintiff''s suit was found to be within limitation. With these findings the plaintiff''s suit was decreed for possession and it was declared that the entries in the revenue record from Kharif 1966 to Rabi 1975 were wrong and against facts. Consequently, decree for possession was also passed. In appeal the learned District Judge, Bhiwani, affirmed the said findings of the trial Court and thus maintained the decree passed in favour of the plaintiff. Dissatisfied with the same, the defendants have filed the second appeal in this Court.

The learned counsel for the appellants contended that the present suit was not competent in the Civil Court as it was the exclusive jurisdiction of the Revenue Court in view of the provisions of section 50 read with section 73 (3)(g) of the Punjab Tenancy Act (hereinafter referred to as ''the Act''). It was also contended that the plaintiff was dispossessed in 1973 and not 1975 as found by the Courts below. Argument was also raised that Kurda plaintiff alone was not entitled to the whole land because Pat Ram, the other tenant, had died before the present suit was filed.. Thus, according to the learned counsel, Kurda was entitled to the whole land because Pat Ram, the other tenant, had died before the present suit was filed. Thus, according to the learned counsel, Kurda was entitled only to his share, if any, and not to the whole of the land. In support of his first contention that it was the exclusive jurisdiction of the Revenue Court to entertain such a suit, which is filed on behalf of the tenant, who alleges to have been illegally dispossessed, he referred to Bhag Singh and others v. Jawahar Singh and others, A.I.R 1965 Punjab 321 (FB); Shankar and others v. Ram Saran and others, 1970 PLJ 448; Jai Narain v. Sarup Singh and others, 1974 PLJ 205. Reference was also made to Mt. Batul Begam v. B. Hem Chander Mukherji, AIR 1960 Allahabad 519; and The Premier Automobiles Ltd. v. Kamlakar Shantaran Wadke of Bombay and others, (1976) 1 Supreme Court Cases 496. On the other hand, the learned counsel for the plaintiffrespondents submitted that no such objection was taken in the written statement, nor there was any issue to that effect. Moreover, the present is a composite suit for correction of the revenue record and for recovery of possession and, therefore, under these circumstances, the suit was maintainable in the Civil Court, as was held in Mewa and others v. Baldeo, A.I.R 1967 Allahabad 358. In any case, argued the learned counsel, that invoking the provisions of section 100(3) of the Act, the High Court may order that the decree be registered in a Court, which has jurisdiction. In support of the last contention, reference was made to Amin Lal v. Financial Commissioner (Revenue) Haryana, Chandigarh and others, 1972 PLR 96.

I have heard the learned counsel for the parties and have also gone through the cases law cited at the bar. It has been concurrently found by both the Courts below that the plaintiff remained in actual physical possession till Rabi 1975 and he was forcibly dispossessed after that. This being a concurrent finding of fact could not be successfully challenged in second appeal. Of course in the plaint the plaintiff claimed himself to be the tenant on the suit land from where he was illegally dispossessed by the defendants. However, in the written statement filed on behalf of the defendants, they denied that the plaintiff was a tenant on the suit land. In any case, no such specific plea was taken in the written statement that the Civil Court had no jurisdiction to entertain the suit in view of the provisions of section 50 read with section 77(3) of the Act. From the facts on the record it appears that the plaintiff earlier filed a suit for correction of the Khasra Girdawaris and Jamabandis for the years 1967 to 1973 in the Court of Assistant Collector 1st Grade Bhiwani. Copy of the said plaint is Exhibit P.29 dated 1st February, 1974. The said suit was contested on behalf of the defendants. Copy of the written statement filed by them is Exhibit P.31. The Assistant Collector 1st Grade, Bhiwani, vide his order dated 24th March, 1975 (Exhibit P.32) dismissed the plaintiff''s suit, as it was not maintainable in the Revenue Court. However, it was observed therein that the plaintiffs i.e. Kurda and Pat Ram (he was alive at that time) may seek their remedy by filing a suit in a competent Court. After the said order was passed by the Revenue Court, the plaintiffs were forcibly dispossessed by the defendants. Consequently, the present suit was filed on 21st July, 1975, in which the prayer was made for correction of the entries in the revenue record from Kharif 1966 to Rabi 1975 and for recovery of possession. It could not be successfully argued on behalf of the appellants that the suit for correction of the entries in the revenue record was not maintainable in the Civil Court. Moreover, the plaintiffs filed the earlier suit for correction of the entries in the Court of Assistant Collector 1st Grade, where the defendants took the objection that he had no jurisdiction, which prevailed with him and the plaintiffs were directed to seek their remedy by filing a suit in a competent Court. It is on these premises that the suit for correction of the entries in the revenue record was held maintainable in the Civil Court.

As regards the relief of recovery of possession, the plaintiff sought the same by way of consequential relief in the present suit, as he was illegally dispossessed taking the benefit of the entries in the revenue record in favour of the defendants, just a month prior to the filing of the present suit. From these premises it could not be successfully argued on behalf of the appellants that the Civil Court had no jurisdiction to entertain the present suit. Moreover, as observed earlier, no specific plea was raised in the written statement, nor there was any issue claimed, though the Courts below have discussed the same under issue No. 5 and came to the conclusion that the suit as such was maintainable. In order to come to this conclusion, reliance was placed on Nathia v. Jai Lal and others, 1977 PLJ 308. Thus from the totality of the circumstances and the conduct of the parties, it could not be successfully argued on behalf of the appellants that any prejudice as such was caused to the defendants by filing the present suit in the Civil Court. If that is so, then in that situation, if it is assumed that relief for recovery of possession could be granted by the Revenue Court, even then invoking the provisions of section 100(3) of the Act, the High Court may order that the decree be registered in the Court which has jurisdiction. Reference in this respect be made to Amin Lal''s case (supra) wherein it was observed in para 13 thereof as under :

"In view of our finding that the Civil Court had jurisdiction, it is not necessary to decide any other question. We are, however, of the opinion that even if it is assumed that the Civil Court had no jurisdiction, it is a fit case where to cut short litigation and save the parties from further unnecessary harassment, we should act under section 100 of the Tenancy Act and direct that it is a fit case where if the suits were not to lie with the Civil Court, the decrees passed by it should be registered in the Revenue Court. The parties undoubtedly acted in good faith and no prejudice can be caused to them."

The said observations of the Division Bench of this Court are fully applicable to the facts of the present case, and, therefore, under the circumstances it becomes unnecessary to go into the matter as to whether the present suit as such was maintainable in the Civil Court or not, though it has been found earlier that no such specific plea was taken in the written statement and there was no issue framed to that effect.

Apart from that, as stated earlier, the present suit for correction of the entries in the revenue record and for recovery of the possession. For the first relief the Civil Court had no jurisdiction and, therefore, for the second relief also the Civil Court will have the jurisdiction, as was held in Mewa''s case (supra), wherein the suit was filed for the cancellation of the sale deed on the ground of fraud and as a consequence thereof, for possession. It was found that the suit for possession was maintainable in the Revenue Court. But since that relief could not be granted unless the sale deed was cancelled, the Civil Court had no jurisdiction to try the suit as such for both the reliefs.

As regards the objection that Kurda plaintiff alone was not entitled to the whole land, it was never taken in the written statement. Nor there was any such issue framed by the trail Court. Under these circumstances the defendants could not be allowed to agitate this point for the first time in the second appeal, particularly when it requires determination of certain facts, because it was pleaded on behalf of the plaintiff that Kurda was a joint tenant with Pat Ram, who died before the filing of the suit, and, therefore, the tenancy being joint, Kurda alone was entitled to recover the possession from the defendants as he was illegally dispossessed therefrom.

In the present case, the conduct of the defendants speaks for itself. It has been concurrently found by both the Courts below that the entries in the Khasra Girdawaris and Jamabandis have been forged and manipulated at the instance of the defendants in collusion with the lower Revenue Staff and that the plaintiff was forcibly dispossessed by the defendants in Rabi 1975. In view of the concurrent findings of the Courts below, it could not be successfully argued that any prejudice, whatsoever, has been caused to them by filing the present suit in the Civil Court. In the cases relied upon by the learned counsel for the appellants nowhere the effect of section 100 of the Act was considered and, therefore, they have no applicability to the facts of the present case.

As a result of the above discussion, this appeal fails and is dismissed with costs.