Mohinder Singh and others vs Punjab State and others

J.V. Gupta, J.

This revision petition arises out of an order of the trial Court dated 26.9.1975, whereby preliminary issue on the jurisdiction of the civil Court was partly decided against the plaintiffs.

Shankar Dass, predecessorininterest of the plaintiff, had taken a contract of fishing in the Districts of Amritsar and Kapurthala for the year ending 3181972. In accordance with the contract, he had to pay Rs. 1,50,000/ at the spot on 1691971; Rs. 1,50,000/ on 1121971 and Rs. 1,50,000/ on 2031972. He paid a sum of Rs. 1,50,000/ at the spot, but made default in payment of subsequent instalments. He, however, represented to the defendantPunjab State and the Assistant Director of Fisheries, Jullundur Division, Jullundur, for being compensated for some loss said to have been occasioned to him on account of the War between India and Pakistan due to which he could not fish in the waters of Rabi as these areas were in the occupation of Army. While his case was being considered, he died. The plaintiffs who are sons and widow of the deceased, applied to the Department for being considered as legal representatives of Shankar Dass and for being allowed to fish in the waters for which contract had been taken by Shankar Dass. They were asked to deposit the arrears due from Shankar Dass before their request could be considered. They did not do so and consequently the contract in favour of Shankar Dass was cancelled and fishing rights were re auctioned. Subsequently, the defendants started proceedings for the recovery of the amount of the contract due from Shankar Dass against the plaintiffs, being his legal heirs and successorsininterest. The Tehsildar, Amritsar, defendant No.3, even arrested Mohinder Singh one of the plaintiffs, in recovery proceedings as according to the defendants, the said amount could be recovered as arrears of land revenue in accordance with the provisions of the Punjab Land Revenue Act (hereinafter called the Act). Thereupon, the plaintiffs filed the present suit for the recovery of Rs. 3 lacs as damages for the alleged breach of licence granted to Shankar Dass and also for decree of permanent injunction restraining the defendants from realising their alleged dues from the plaintiffs as arrears of land revenue as well as for the decree of mandatory injunction directing the Tehsildar, defendant No. 3, to release Mohinder Singh plaintiff from custody.

In the written statement the defendants took up one of the preliminary objections that the recovery proceedings having been initiated against the plaintiffs under the provisions of the Act, as arrears of land revenue, the jurisdiction of that Court was barred by the provisions of section 98 (b) read with section 158 of the Act. Consequently, the trial Court framed a preliminary issue to the following effect :

Whether the Civil Court had no jurisdiction to entertain the present suit ?

The defendants did not produce any evidence in support of this issue, but the plaintiffs, Amar Nath and Mohinder Singh appeared as their own witnesses and reiterated the contents of the plaint. They also tendered in evidence copies of the receipts of the amounts deposited by them and also the copies of various letters connected with their claim for compensation made from the Department. The trial Court, in view of the provision of clause (xiv) of sub section (2) of section 158 of the Act, came to the conclusion that the civil Court had no jurisdiction to entertain any claim connected with the recovery proceedings initiated by the defendants against the plaintiffs for the amount said to be due to them as arrears of land revenue. Consequently, in so far as the claim of the plaintiffs for the decree of permanent injunction and the mandatory injunction was concerned, it was held that the civil Court could not entertain the suit. Feeling aggrieved against this order, the plaintiffs have come up in revision to this Court.

The learned counsel for the petitioners contended that the plaintiffs are not the defaulters are defined in section 3(8) of the Act and, therefore, the civil suit filed by them for a mandatory and permanent injunction that the property belonging to them was not attachable, is not barred. In support of his contention, Union of India v. Firm Ralia Ram Raj Kumar, A.I.R. 1954 Punjab 271, was cited. On the other hand, the learned counsel for the respondents submitted that since the amount is recoverable as arrears of land revenue, the provisions of section 158 of the Act read with section 98 thereof are attracted and, therefore, the jurisdiction of the civil Court is barred thereunder. In support of this contention, he referred to Punjab State v. Kirpal Singh, 1978 P.L.J. 109.

I have heard the learned counsel for the parties at length. In view of the decision in A.I.R. 1954 Punjab 271 (supra) it is not disputed that the present suit filed by the successorsininterest of Shankar Dass deceased, who was the person who originally entered into contract with the Fisheries Department, is not competent. In the said case it has been held :

"From an examination of section 78 and section 158 (2) (xiv) of the Act, it is plain that those provisions apply to that person alone against whom the `writs'' of demand for the arrears of land revenue realizable as such are issued. If so, section 158(2)(xiv) of the Act does not refer to claims which may have a connection with the collection of revenue but are made by persons other than the defaulter. Section 158(2)(xiv) cannot be interpreted to bar a suit instituted by a person other than defaulter to establish that the property proceeded against was not the property or the defaulter from whom land revenue was due."

The aforesaid observations fully cover the present case. However, the learned counsel for the respondents contended that as regards Mohinder Singh and Amar Nath, plaintiffspetitioners, they are also sureties under the contract and, therefore, they come within the definition of the term `defaulter'' as defined in subsection (8) of section 3 of the Act and as such the suit for permanent injunction at least on their behalf is not entertainable by the civil Court. This matter cannot be gone into at this stage because no such finding has been given by the trial Court and no evidence was led by the defendants on this case. In this view of the matter this petition succeeds; the order of the trial Court is set aside and it is directed that suit be proceeded with in accordance with law. No costs.