Munshi Ram and Others vs Beli and Others

S.M. Fazl Ali, C.J.—This application arises out of an order passed by the trial court of the sub-Judge Kathua holding that the present suit is

cognizable by the Civil Court

The plaintiff brought a suit alleging that he was the occupancy tenant of the land in question, having purchased the occupancy rights from the

defendants, and prayed for a declaration to this effect and also for a permanent injunction restraining the defendant from interfering with the

possession of the plaintiff. The trial court was of the view that on the allegations made in the plaint the case was cognizable by a civil court and not

by the revenue court. In revision the point raised before the learned single judge was that as the suit fell within the four corners of Section 85(3)(a)

of the J. & K. Tenancy Act, the jurisdiction of the civil court was clearly barred. The learned single Judge after hearing the counsel for the parties

has referred the following point for our decision:

Has the civil court jurisdiction to entertain a suit when a prayer for permanent injunction is added to the prayer for declaration to the effect that the

plaintiff is the occupancy tenant of the land.

We have heard counsel for the parties. The learned Counsel for the petitioner relied upon the decisions of the Allahabad and the Lahore High

Courts in support of his contention that the present suit being dearly covered by the first group of Section 85(3)(a) of the Tenancy Act was not

cognizable by the civil court On the other hand the counsel for the respondent has relied on other decisions to show that since the suit was also for

a permanent injunction it could not be entertained by a revenue court which was not entitled to give a relief with respect to the prayer for injunction.

In order to determine this question it will be necessary to analyze the provisions of the Tenancy Act which in our opinion appear to be different

from the provisions of the Tenancy Act which were the subject matter of interpretation by the Allahabad High Court Section 85(3)(a) of the J. &

K. Tenancy Act runs thus:

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 -- (a) suits by a tenant u/s 7-A(1) or otherwise, to establish a right of occupancy, or

by landlord to prove that a tenant has not such a right."" Counsel for the petitioner seeks to bring his case within the ambit of clause (a) referred to

above inasmuch as according to him it is in substance a suit for establishing a right of occupancy against the defendant. It is well settled that in order

to determine the question as to which court would have jurisdiction to decide the suit the court has to look into the allegations made in the plaint

and not in the written statement. In the plaint the allegation made by the plaintiff does not constitute a prayer for declaration of the status of an

occupancy tenant simpliciter, but the plaintiff avers that he had purchased rights of occupancy from the defendant on the basis of which he seeks to

base his title, Thus even on the allegations made in the plaint it would appear that a clear question of title is involved, namely, the validity of the

transfer of the occupancy rights by the defendant to the plaintiff. Therefore, such a suit does not come prima facie within the purview of Section

83(3)(a) (supra).

Even assuming, however, that the right to question the purchase of the right of occupancy by the plaintiff amounted to a right to establish the right of

occupancy and is covered by Section 85(3) (a) of the Tenancy Act the question still remains whether or not there is any provision in the Tenancy

Act which empowers the revenue court to grant relief for a permanent injunction. It is well settled that no court is to infer an implied exclusion of

the jurisdiction of the Civil Court Unless there is a specific provision barring the jursdiction of the civil court, the same would not be said to be

ousted. This principle was recently laid down in a Full Bench case of the Allahabad High Court in Raja Ram Verma Vs. State of U.P. and Others,

. Further more in Magiti Sasamal Vs. Pandab Bissoi, , the same principle had been laid down by the Supreme Court in the following words:

It is true that having regard to the beneficent object which the legislature had in view in passing the Act its material provisions should be liberally

construed. The legislature intends that the disputes contemplated by the said material provisions should be tried not by ordinary civil courts but by

tribunals especially designated by it, and so in dealing with the scope and effect of the jurisdiction of such tribunals the relevant words used in the

section should receive not a narrow but a liberal construction.

While bearing this principle in mind we must have regard to Anr. important principle of construction, and that is that if a statute purports to exclude

the ordinary jurisdiction of civil courts it must do either by express terms or by the use such terms as would necessarily lead the inference of such

exclusion. As Privy Council has observed in AIR 1940 105 (Privy Council) . It is settled law that the exclusion of jurisdiction of the civil courts is

not be readily inferred, but that such (sic) must either be explicitly expressed clearly implied.

If the respondents contend that the jurisdiction of the civil court to deal (sic) such a civil dispute has been taken (sic) by Section 7(1), we must

enquire ether Section 7(1) expressly takes away (sic) said jurisdiction or whether the (sic) words used in the section lead to (sic) an inference or

the scheme of the (sic) inescapably establishes such an (sic). The relevance and materiality of (sic) these principles are not in dispute.

In the case which was being considered their Lordships of the Supreme Court, Section 7(1) of the Orissa Tenants Protection Act had laid down

suits lying in (sic) different categories which were not (sic) by a civil court Their Lord (sic) pointed out that all the five (sic) had to be carefully

analyzed in (sic) to see whether or not a particular (sic)t falls within four corners of those (sic) before the jurisdiction of a (sic) court could be

ousted. Similarly (sic) Lordships held that any dispute re(sic) the existence of the relationship landlord and tenant was beyond the (sic) of the

categories mentioned in the (sic) Act.

On a parity of reasoning, therefore, appears to us that if we analyze the its contemplated by Section 85(3)(a) (supra) we do not find any

category which includes a suit where a relief for (sic) can also be granted by a revenue (sic). The position, therefore, is that are is no provision in

the Tenancy Act which a revenue court is empowered grant a relief of injunction.

In the instant case the prayer of (sic) plaintiff for injunction cannot be said be a mere surplusage, but it forms an (sic) part of the main relief of

(sic) sued for by the plaintiff. Such a (sic) not being cognizable by a revenue (sic), it is obvious that the suit can only (sic) in a civil court and not in a

revenue court.

We shall now deal with some of the authorities that have been cited before (sic).

In Mohd. Zahir Hasan and Another Vs. Dulare and Others, it is true that suits for permanent injunction under the U.P. tenancy Act were held to

be cognizable a revenue court alone so as to bar the jurisdiction of the civil court From a perusal, however, of the relevant provisions, of the U.P.

Act cited at pages 729-30 of the Report it would appear that the U.P. Act had two distinguishing features. In the first place Section 242 which had

barred jurisdiction of the civil court was couched in a very comprehensive language and the words ""or of any suit or application based on a cause

of action in respect of which any relief could be obtained by way of any such suit or application"" were naturally wide enough to include a suit for a

permanent injunction. Furthermore the Explanation to Section 242 of the U.P. Act which ran thus:

If the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil

court may not be identical with that which the revenue court could have granted.

made it absolutely clear that a relief of injunction also could be entertained by a revenue court.

In the J. & K. Tenancy Act however, the provisions which bar the jurisdiction of the civil court are not couched in such wide terms so as to bar

suits by the civil court with respect to injunction also.

The other Allahabad authorities also are based on the special language of the U.P. Tenancy Act and are therefore not helpful to us in

determining the question.

As regards AIR 1927 Lah 35. Hari Shankar v. Nazir Khan, the facts of that case are clearly distinguishable because the suit was not for an

injunction at all, and the only claim was one for declaration on the basis of ownership.

Another case relied on by the counsel for the petitioner was Ibrahim v. Akbar AIR 1916 Lah 86 . This case no doubt supports the contention

of the petitioner because it would appear that there also the suit was for a permanent injunction. In this case their Lordships relied merely on the

fact that since, one of the claims was for declaration it was cognizable by a revenue court and therefore the entire suit was not triable by a civil

court. Their Lordships did not specifically consider the effect of the fact that there was no provision in the Tenancy Act providing for a relief

regarding injunction. Furthermore the interpretation given by their Lordships does not appear to be in consonance with the principles laid down by

the Supreme Court in Magiti Sasamal Vs. Pandab Bissoi, . For these reasons we find ourselves unable to agree with the view expressed by their

Lordships and record our respectful dissent therefrom.

In Nopla and Others Vs. Mula and Others, , it was clearly held by Bapna J. that a revenue court had no jurisdiction to entertain a suit for issue

of a permanent injunction which could only be granted by a civil court.

Even a Division Bench of the Allahabad High Court in Angnu Vs. Mahabir and Another, has endorsed this view and has observed as follows:

If a suit is brought in respect of an agricultural plot of land as also for the removal of constructions standing on it and for damages and also for an

injunction such a suit would lie in the civil court. The revenue court is not competent to grant all the reliefs and if all the reliefs cannot be granted by

the revenue court, the suit would lie only in the civil court.

To the same effect is Anr. case in (1964) 2 AWR 465.

We respectfully agree with this view and hold that where a suit is brought for two or more reliefs, one of which is cognizable by the revenue

court but the Ors. are not, then the jurisdiction of the civil court is not ousted.

For the reasons given above, we decide the question referred to us in the affirmative and hold that the civil court has jurisdiction to entertain the

present suit The application shall now be sent back to the learned single Judge for disposal on merits.

Jaswant Singh, J.

I agree.