Lt. Col. Micheal A.R. Skinner vs Man Krishan (Deceased) by his L.Rs.

D.V. Sehgal, J.

This appeal arises from the judgment and decree of the learned Senior SubJudge (with enhanced appellate powers) Karnal, whereby he allowed the appeal of the defendantsrespondents and dismissed the suit brought by the plaintiffsappellants on the ground that in view of the provisions of section 6(4) of the East Punjab Land Utilization (Haryana Amendment and Validation) Act, 1971 (hereinafter called the Act) the civil Court had no jurisdiction to entertain the suit. The learned appellate Court set aside the judgment and decree of the SubJudge IInd Class, Panipat dated 23.10.1973, whereby the suit of the plaintiffsappellants for possession of the land in dispute had been decreed with costs. The unsuccessful plaintiffs have thus filed the present appeal.

The facts in brief are that the plaintiffs brought a suit for possession of agricultural land described in the headnote of the plaint alleging that they had become the owners of the same by way of inheritance the mutations (Nos. 351 to 353) of which were sanctioned in their favour. The plaintiffs allege that the defendants were in possession of the suit land since Kharif, 1946 on the basis of a Patta. The land was leased out to the defendants by the Collector, Karnal under the Act. According to them, the period of Patta expired on 15.6.1966 but the defendants had not vacated the suit land. They had as such become trespassers. On this basis the plaintiffs claimed possession of the suit land. The defendants in their written statement denied that they had taken the land on Patta. They also denied that the land was leased out to them by the Collector, Karnal under the Act. They instead alleged that the predecessorsininterest of the plaintiffs were never in possession of the suit land within 12 years and that the defendants had become the owners of the suit land by adverse possession. It was further pleaded that the suit was not within limitation. On the basis of the pleadings of the parties, the learned trial Court framed the following issues :

(1) Whether the plaintiffs are the owners of the suit land? OPP.

(2) Whether the defendants came in possession of the land in dispute as Pattadar for 20 years w.e.f. Kharif, 1946 ? If so, to what effect ? OPP.

(3) Whether the plaintiffs have not been in possession of the suit land within a period of twelve years ? OPD.

(4) Whether the suit does not lie in the present form ? OPD.

(5) Whether the plaint has been verified properly ? OPP.

(6) Whether the suit is not within time ? OPD.

(7) Whether the defendants have become owners by way of adverse possession ? OPD.

(8) Relief.

Under issue No. 1, the trial Court held that the plaintiffs were the owners of the suit land. Under Issue No. 2 although no Patta was proved nor was there any evidence that the suit land was given on lease by the Collector to the defendantsrespondents, the trial Court held on the basis of the Khasra Girdawaris and Jamabandis since the year 195152 that the defendants respondents were Pattedars. They had been paying rent to the plaintiff''s predecessors in the beginning but later no rent was paid. The trial Court further observed that being Pattedars, i.e., lessees of the suit land, since the defendantsrespondents who would otherwise have been protected by the provisions of Punjab Security of Land Tenures Act, had denied the relationship of landlord and tenant, the plaintiffs are within their right to seek possession of the suit land through the instant suit. For this conclusion, the learned trial Court relied on Smt. Suhag Rani v. Shri Sukhdev, 1971 Cur.L.J. 391 : 1971 R.C.R.(Rent) 418. In respect of the other issues, it was held that the suit was within time and that the defendants had not become owners of the suit land by adverse possession, the suit was in proper form and the plaint had been properly verified. On these premises, the learned trial Court decreed the suit for possession of the land in favour of the plaintiffs and against the defendants.

Aggrieved by the judgment and decree of the trial Court, the defendants appellants filed the appeal which was heard by the Senior Subordinate Judge with enhanced appellate powers, Karnal. The learned appellate Court has held that the Civil Court had no jurisdiction to entertain the suit observing that no doubt the defendantsrespondents did not raise specifically the plea of want of jurisdiction of the Civil Court in two written statements it held that since there was specific averment in the plaint that the Collector had given the suit land on Patta for 20 years since Kharif, 1946 to Rabi, 1966 under the Act, in view of the provisions of section 6(4) of the Act, the Court had no jurisdiction to entertain the suit.

Section 6(4) of the Act reads as under :

"No civil or revenue Court shall have jurisdiction to entertain any suit or proceedings in respect of the determination of lease or eviction of a tenant''''.

It is not in dispute that the Act came into force in the year 1949. So the averment in the plaint that the land in suit was given on Patta for 20 years by the Collector, Karnal under the Act from Kharif, 1946 to Rabi, 1966 appears to be misconceived. The matter, however, does not rest here. The defendantsrespondents in para 2 of their written statement averred as under :

"That Para 2 is totally wrong. The suit land was never given to the defendants on Patta by the Collector, Karnal as alleged. Rather they came in possession of the said land in their own right and continued to be so till now without paying any rent etc. to anybody whatsoever. Of course, the land revenue was all along paid by the defendants to the Government. The story of Patta is a madeup story and the defendants have throughout been exercising their right of ownership adversely to the alleged ownership of the plaintiffs, if at all so proved. The defendants deny the plaintiff''s ownership of the suit land. Since the land was banjar and lying uncultivated, so the defendants came in its possession and reclaimed it as full owners and were paying the land revenue since 1949.''''

There is no dispute that if there is categoric case of the parties that the suit land was given on Patta by the Collector to the defendants under the Act, the Civil Court shall have no jurisdiction in view of section 6(4) of the Act as reproduced above. The averment of the plaintiffs that the land in suit was given on Patta by the Collector, Karnal since Kharif, 1946 shows that the land was not given on Patta under the provisions of the Act which came into force only in the year 1949. Moreover, the defendants denied the assertion of the plaintiffs that the land was given to them on Patta for 20 years by the Collector, Karnal. Even during the evidence, no order of allotment of the land in suit by the Collector to the defendants could be produced on the record. It has been rightly observed by the learned Appellate Court that the defendants did not raise the objection with regard to want of jurisdiction of the Civil Court and did not plead bar to the suit under section 6(4) of the Act. In fact no such objection could not have been taken by the defendantsrespondents for the simple reason that they categorically denied that the land was ever given to them on Patta by the Collector under the provisions of the Act.

Mr. Hemant Gupta, learned counsel for the appellants has argued that since the defendants had disclaimed the tenancy, the suit for possession was maintainable. To support his assertion he has relied on Sada Ram and others v. Gujjan, 1970 PLJ 223 and Smt. Suhag Rani v. Shri Sukhdev etc., 1971 Cur. L.J. 391. The denial of relationship of landlord and tenant by the tenant in his written statement to a suit for ejectment determines the tenancy forthwith and gives the right to the landlord to the possession of the leased property when the lease is not for a fixed period. Such denial of tenancy by the defendant in the written statement to suit for possession works as forfeiture of tenancy and the suit for possession is maintainable.

Mr. J.S. Malik, learned counsel, on the other hand, has argued that the jurisdiction of the Civil Court has to be seen by perusal of the plaint alone and since in para 2 of the plaint, the plaintiffappellants have specifically stated that the land in suit was given to the defendants on Patta for 20 years from Kharif, 1946 to Rabi, 1966 by the Collector, Karnal under the Act, the provisions of section 6(4) of the Act would apply and keeping in view the provisions of clause (d) of rule 11 Order VII of the Code of Civil Procedure, the plaint ought to have been rejected even in the absence of any plea by the defendant regarding statutory bar as to the maintainability of the suit in the Civil Court.

I have not been able to persuade myself to agree to this contention. Firstly, the Act was not in force in 1946 when according to the plaintiffs appellants the land was given on lease by the Collector, Karnal. Thus it appears that the defendants did not come in possession of the land by virtue of the provisions of the Act. Further, since the defendants filed their written statement and had specifically denied having come in possession of the suit land by virtue of any lease in their favour by the Collector Karnal, under the Act the matter came out of the ken of the provisions of the Act. The things do not rest here. Even during the course of evidence, no evidence could be led to show that there was any order of allotment or a Patta by the Collector, Karnal by virtue of which the defendants came into possession of the land under the provisions of the Act. The defendants have instead set up the plea of their ownership of the suit land by adverse possession. No doubt according to the finding of the Court under Issue No. 2, the defendants came in possession of the suit land as lessees and were so recorded in the entries in the Khasra Girdawaris since 195152 but this matter requires to be gone into on merits by the appellate Court.

In view of the above, I am of the considered opinion that the learned appellate Court was wrong in nonsuiting the plaintiffappellants on the ground that Civil Court had no jurisdiction to entertain the suit. The learned appellate Court has not dealt with the contentious points raised by both the parties and the evidence led thereon by them. The findings of the trial Court on Issue Nos. 17 have not been examined and have neither been affirmed nor disturbed.

I accordingly hold that the Civil Court had the jurisdiction to entertain and try the suit brought by the plaintiffsappellants. In view of the above, I allow this appeal, set aside the judgment and decree dated 23.8.1976 of the learned Senior SubJudge with enhanced appellate powers, Karnal and remand the case to the Appellate Court with the direction that it should decide the appeal brought by the defendantappellant Man Krishan on merits. There shall be no order as to costs.

The parties through their learned counsel are directed to appear before the District Judge, Karnal on 19.9.85 who will either hear the appeal himself or entrust the same to an officer exercising appellate jurisdiction. The records of the case be returned forthwith.