Murti Mandir Mani Ram and Another vs Bhagat Ram

H.S. Thakur, J.—This Letters Patent Appeal is directed against the judgment of the learned single Judge, dated April 10,1973.

A few facts relevant to decide this appeal may be stated. The land in dispute consists of two khatas, No. 8 and 9 and is situated in village Jaisinghpur (Bhora). Mandir Sita Ram was recorded as owner of the land comprised in Khata No. 8 while Mandir Mani Ram was recorded as owner of the land comprised in Khata No. 9. According to the allegations of the Plaintiff/Respondent, Smt. Surto was the occupancy tenant of the land in dispute and was in its occupation without payment of any rent. It is alleged that she became owner of the land on June 15, 1952 in pursuance of the provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act of 1952 (Punjab Act No. VIII of 1953), (hereinafter to be referred to as ''the Act of 1953). Surto executed a will in respect of the land in dispute in favour of the Plaintiff/Respondent (hereinafter to be referred to as ''the Plaintiff'') on May 9,1946. Surto thereafter died on April 18, 1953. Mutation of the land was, however, on the death of Surto sanctioned in favour of the Defendants/Appellants (hereinafter to be referred to as ''the Defendants''). The Plaintiff claimed that the aforesaid mutation was not binding upon him and he was entitled to be in possession of the land as against the Defendants.

The trial Court found that Surto was not the occupancy tenant of the land and, as such, she did not acquire right of ownership under the Act of 1953. The decision of the trial Court was affirmed by the learned District Judge.

The Plaintiff preferred a second appeal which was consi dered and decided by H.R. Khanna, C.J. (as he then was) on September 24, 1970. The learned single Judge considered the contentions of the learned Counsel for the Plaintiff and observed that the learned Additional District Judge was not right in not drawing the presumption in favour of the Plaintiff because of his failure to prove that Surto or her predecessor-in-interest was in occupation of the land in dispute on November 1, 1887. It was further observed that the above approach had vitiated the judgment of the learned Additional District Judge and that the case had to be remanded for a fresh decision.The learned single Judge while coming to this conclusion has in his judg ment reproduced the observations of the learned Additional District Judge. It is convenient to extract the same for a ready reference:

It has been held in 5 Punjab Records 1896 and 3 Punjab Records 1911 that the tenant to acquire the presump tion u/s 5 Clause 1(a) must prove two things u/s 5 Clause (2), firstly that the tenant had occupied the land continuously for a period of thirty years without payment of any rent to the landlords ex cept land revenue rates and cesses to the Government, secondly, that the tenant or his predecessor-in-interest had occupied the land on 1st November, 1887. The Plaintiff could only show that Mst. Surto had occu pied the land continuously for a period of thirty years without payment of any rent to the landlords. He could not prove that either Mst. Surto or her pre decessor-in-interest was in occupation of the land in suit on 1st November, 1887.

The learned single Judge did not approve the observations of the learned Additional District Judge and observed that a Division Bench of Punjab High Court (Harries C.J. and Abdur Rahman, J.) in Punjab National Bank Ltd. v. Dina Nath AIR 1944 Lah 276 has not approved the decision in Maula v. Jivan Baksh and Ors. (5 PR. 1896). The relevant observations may be reproduced as under:

Reliance was placed in this connection on certain observations in 5 P.R. 1896 (Rev). But if the learned Financial Commissioner imented to lay down that the tenant must show that he was in occupation of the land to which his claim related on 1st November, 1887, as he appears to have stated at P. 22 of the report, it would not only be inconsistent with his observations in an earlier portion of his judgment but would, in view of what is contained in Section 6(1), Sub-clause (a) of the Act, make the existence of Clause (2) superfluous.

The case was remanded by the learned single Judge and a report on the basis of the aforesaid observations was ordered to be submitted. The learned Additional District Judge after reconsidering the whole matter afresh in the light of the observations whether the presumption had been rebutted or not submitted a report to the effect that no jamabandi for the year 1887 had been filed and for that reason it could not be said that the landlord had rebutted the presumption which was in favour of the Plaintiff u/s 5(2) of the Punjab Tenancy Act, 1887. Ultimately, it was found by him that the landlords had failed to repel the presumption which is in favour of the Plaintiff u/s 5(2) of the Punjab Tenancy Act, 1887. After the report was submitted by the learned Additional District Judge, the appeal was heard by C.R. Thakur, J., who upheld the view of the learned Additional District Judge.

The Defendants being aggrieved by the judgment of the learned single Judge (C.R. Thakur, J.), have preferred this Letters Patent Appeal.

Mr. M.G. Chitkara, who appears for the Defendants, has raised the following contentions:

(a) That the civil Court had no jurisdiction to adjudicate upon in the matter in dispute as the suit could exclusively be decided by a revenue Court in terms of Section 77(3) proviso 2(c) 2nd group (d) of the Punjab Tenancy Act;

(b) That presumption raised u/s 5(2) of the Punjab Tenancy Act can be rebutted and has been rebutted by the Settlement record 1868;

(c) That there being concurrent finding of fact of two Courts, that is, the trial Court and the appellate Court, that the Plaintiff was not an occupancy tenant could not be reversed in second appeal; and

(d) That u/s 2(f) of the Punjab Occupancy Tenants Act, two things are to be satisfied, that is, that a person i s recorded a s an occupancy tenant in the record and even if he is so recorded the entries in the revenue record to this effect can be rebutted.

We may consider the contention whether the suit was cognizable by a civil Court or not. We are of the view that the matter stands clinched by a decision of the Supreme Court in Shri Raja Durga Singh of Solan Vs. Tholu, Their Lordships of the Supreme Court while extracting certain provisions of the section, that is:

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 and instituted in a Civil Court it becomes necessary to decide any matter which can under this sub-section be heard and determined only by 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, CPC and return the plaint for presentation to the Collector.

After quoting the above provisions, the Supreme Court observed as under:

We are not concerned with the second proviso. Below the second proviso the kind of suits which are triable by the revenue Courts are set out in three groups. It is contended on behalf of the Respondents that the suit in question would fall under entry (e) in the second group. That entry reads thus:

Suits by a landlord to eject a tenant. They also contend that their suit before the revenue Court was one under entry (d) which reads thus:

Suits by a tenant to establish a claim to a right of occupancy, or by a landlord to prove that a tenant has not such a right.

It would, however, appear that not only items (d) and (e) but every other item in the three groups relates to a dispute between tanants on the one hand and the landlord on the other. There is no entry or item relating to a suit by or against a person claiming to be a tenant and whose status as a tenant is not admitted by the landlord. It would, therefore, be reasonable to infer that the legislature barred only those suits from the cognizanoe of a civil caurt where there was no dispute between the parties that a person cultivating land or who was in possession of land was a tenant. This is precisely what has been held in the two decisions of the Lahore High Court relied upon by Mr. Achhru Ram. In the first of these two cases Tek Chand, J., observed:

It is obvious that the bar under Clause (d) is applicable to those cases only in which the relationship of landlord and tenant is admitted and the object of the suit is to determine the nature of the tenancy i.e., whether the status of the tenant falls under sections 5, 6, 7 or 8 of the Act".

The aforesaid observations of the Supreme Court negative the contention of the learned Counsel for the Appellants/ Defendants.

Mr. M.G. Chitkara has referred to a decision in Gundaji Satwaji Shinde Vs. Ramchandra Bhikaji Joshi, This decision is in respect of Bombay Tenancy and Agricultural Land Act (67 of 1948). Under the said Act, the question whether a buyer is an agriculturist was to be decided by the authorities detailed in the Act. Mr. Chitkara has invited our attention to the observations contained in paragraph 8 of the judgment. It is desirable to reproduce the same:

Uninhibited by the decision to which our attention was invited, the matter may be examined purely in the light of the relevant provisions of the statute. Section 70(1) constitutes the Mamlatdar a form for performing the functions and discharging the duties therein specifically enumerated. One such function of the Mamlatdar is to decide whether a person is an agriculturist. The issue arising before the Civil Court is whether the Plaintiff is an agriculturist within the meaning of the Tenancy Act. It may be that jurisdiction may be conferred on the Mamlatdar to decide whether a person is an agriculturist within the meaning of the Tenancy Act but it does not ipso facto oust the jurisdiction of the Civil Court to decide that issue if it arises before it in a civil suit. Unless the Mamlatdar is constituted an exclusive forum to decide the question hereinabove mentioned conferment of such jurisdiction would not oust the jurisdiction of the Civil Court. It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied [see AIR 1940 105 (Privy Council) However, by an express provision contained in Section 85 the jurisdiction of the Civil Court to settle, decide or deal with any question which is by or under the Tenancy Act required to be settled, decided or dealt with by the competent authority is ousted. The Court must give effect to the policy underlying the statute set out in express terms in the statute. There is, therefore, no escape from the fact that the legislature has expressly ousted the jurisdiction of the Civil Court to settle, decide or deal with any question which is by or under the Tenancy Act required to be settled, decided or dealt with by any of the authorities therein mentioned and in this specific case the authority would be the Mamlatdar as provided in Section 70(1).

The observations of the Supreme Court in this judgment concerned the interpretation of the relevant provisions of the Act only. It may, however, be pointed out that in the said decision the decision in Raja Durga Singh''s case was not considered. The Supreme Court in this decision has specifically referred to the provisions contained u/s 77(3) proviso (ii) (d) of the Punjab Tenancy Act. After considering the provisions, it has been ultimately observed that the jurisdiction of the Civil Court would be only ousted if the relationship of landlord and tenant is admitted by the parties. As such, this being a decision on the specific provisions contained under the Punjab Tenancy Act, we are unable to differ with that view. As such, we are of the view that the Civil Court had jurisdiction to decide the matter in dispute. It may be pointed out that Mr. D.D. Sood, vice Mr. Chhabil Dass, who argued the mattsr has drawn our attention to Section 100 of the Punjab Tenancy Act, 1887. Under the provisions contained in the said section, it is provided under sub-section (3) that if it appears to the High Court otherwise than on submission of a record under sub-section (1) that a Civil Court under its control has determined a suit of a class mentioned in Section 77 which under the provision of that section should have been heard and determined by a Revenue Court, the High Court may pass any order which it might have passed if the record had been submitted to it under that subsection. The learned Counsel has also referred to the decision in Achhar Singh and Anr. v. Smt. Kartar Kaur and Anr. 1959 P.L.R. 231. Under the circumstances of that case, it was held that since the question of jurisdiction was not agitated before the learned District Judge that objection could not be sustained later on. In the case in hand we find that the Defendant s did not press this point of jurisdiction before the trial Court as also before the learned District Judge. We also find that this point was not pressed even before the learned single Judge. Under the circumstances, even if the matter was to be determined by a revenue Court and was in fact determined by a Civil Court, the same could be regularised by resorting to the provisions contained u/s 100 of the Punjab Tenancy Act. Mr. Sood referred to some other decisions on the point but is not necessary to discuss the same as we are likely to dispose of this appeal on oth er grounds.

The next point that has been raised is whether presumption raised u/s 5(2) of the Punjab Tenancy Act can be rebutted and has been rebutted by settlement record of 1868 or not. In order to repel this contention, referencs can be made to the decision in Punjab National Bank Ltd. v. Dina Nath AIR 1944 Lah. 276. In this connection, reference may be made to the judgment of H.R. Rhanna, C.J. (as he then was) dated September 24, 1970 under which decision the case was remanded to the learned Additional District Judge for report. In the said judgment, the observations made in Punjab National Bank Ltd. v. Dina Nath, AIR 1944 Lah. 276, were extracted. It is useful to reproduce the same:

Reliance was placed in this connection on certain observations in 5 P.R. 1896 (Rev). But if the learned Financial Commissioner intended to lay down that the tenant must show that he was in occupation of the land to which his claim related on 1st November, 1887, as he appears to have stated at p. 22 of the report, it would not only be inconsistent with his observations in an earlier portion of his judgment but would, in view of what is contained in Section 5(1), Sub-clause (a) of the Act, make the existence of Clause (2) superfluous.

It is further observed that:

Learned Additional District Judge in the instant case was, therefore, not right in not drawing the presumption in favour of the Plaintiff-Appellant because of his failure to prove that Surto or her predecessor-in-interest was in occupation of the land in dispute on November 1,1887. As the above approach has vitiated the judgment of the learned Additional District Judge, the case would have to be remanded for fresh decision.

We are in agreement with the above view. It is not disputed that the Respondent-Plaintiff was in possession of the property in dispute for last 30 years of the commencement of the suit. As such, we may not refer to the settlement record of 1868. We may, however, frankly point out that in view of the provisions contained in the Act of 1953, the discussion on the said point is of academic interest only. Under the Act of 1953, ''occupancy tenant'' has been defined in clause (f) of Section 2. The said clause reads as under:

2 (f) "Occupancy tenant" means a tenant who, immediately before the commencement of this Act, is recorded as an occupancy tenant in the revenue records and includes a tenant who, after such commencement, obtains a right of occupancy in respect of the land held by him whether by agreement with the landlord or through a Court of competent jurisdiction or otherwise, and includes also the predecessors-in-interest of an occupancy tenant.

Under Section 3 of the said Act, proprietary rights in occupancy tenants have been vested and the corresponding rights of the landlord have been extinguished. The question whether the definition of ''occupancy tenant'' and whether the entry recording him as an occupancy tenant in revenue record is a conclusive proo f of such tenancy was considered by a Full Bench of this Court in Devi Singh etc. v. Hukam Ram etc. ILR 1977 HP 357. The Full Bench of this Court while considering this aspect and after extracting the relevant provisions defining ''occupancy tenant'' finally observed as under:

It is apparent that u/s 3, the rights of the original proprietor are extinguished with effect from the appointed day (June 15,1952), and simultaneously an occupancy tenant acquiring proprietary rights in the land. Who is an ''occupancy tsnant for the purposes of this Act is defined by Section 2(f). The definition divides the tenants covered by it into two categories-those who are to be considered with reference the date immediately before the commencement of the Act and those after such commencement. It will be noticed that the recorded entry has been made the test with respect to the first category. It is a special criterion, a departure from the normal rule, and full effect must be given to it. The second category, which defines an "occupancy tenant" by reference to the usual modes of acquiring an occupancy tenancy embodies the normal rule. The different definitions in respect of the two categories demonstate that a clear separation is intended between the two and therefore when the first category is considered, it is the recorded alone which is material. It is only whers the recorded entry is induced by fraud or void ab initio by reason of it being made by incompetent authority or otherwise, that the entry can be questioned and an inquiry taken behind it. The mere circumstance that the entry is erroneous on its merits does not permit such an entry.

It is not disputed by the learned Counsel for the parties that the Plaintiff''s predecessor-in-interest is recorded as an occupancy tenant in the relevant record. It is not the case of the Appellant that the entry has been recorded by fraud or is void ab initio by reason of it being made by incompetent authority. In view of this fact, we have no option but to hold that the Plaintiff is entitled to the benefit of the provisions contained in the Act of 1953. As such, in the face of the judgment of the Full Bench referred to above, there is no scope but to arrive at the conclusion that the entry made in the revenue record is final and conclusive.

On the basis of the aforesaid observations, we have no hesitation in holding that there is no merit in this appeal and the same is hereby dismissed. As some substantial questions of law were involved in the case, the parties are left to bear their own costs.