Niranjan Lal and Others vs Siria and Others

Chopra, J.—The facts that gave rise to the above five civil references u/s 99 of the Punjab Tenancy Act by the Assistant Collector, Narnaul, through the Commissioner, Patiala, & East Punjab States Union, are identical. Niranjan Lal and others brought five suits against different sets of defendants for possession of separate plots of agricultural land on the allegation that they were the owners and that the defendants who had no concern with the land had wrongfully taken possession of it and got themselves entered as tenants-at-will to the revenue records. The plea of the defendants in each of the suits was that they were occupancy tenants of the land & according to law the Plaintiffs had no right to dispossess them. They further contended that the question involving the determination of their rights could be tried only by a revenue Court and hence the civil Court had no jurisdiction to try the suits. A preliminary issue "whether the Court had no jurisdiction to hear the suits" was framed and decided against the Plaintiffs. The learned Sub-Judge taking his stand on the proviso to Section 77(3) of the Punjab Tenancy Act directed the records to be sent to the Collector for transferring the cases to a revenue Court of competent Jurisdiction. The cases having been transferred to the Assistant Collector, Narnaul, he has made these references on the ground that since the question of jurisdiction is to be determined with reference to the nature of the suit and not on the pleas taken by the defendants and since the suits were for possession of land and not to establish a claim to a right of occupancy or to prove that a tenant has not such a right, they were exclusively triable by a civil Court. My learned brother Hon''ble the Chief Justice has referred these cases to a Division Bench because the question involved is not only important but arises very frequently in cases of this kind.

Mr. Ram Niwas, the learned Counsel for the Plaintiffs, urged that since the proviso to Sub-section 3 of Section 77 of the Punjab Tenancy Act, which was inserted by a subsequent amendment of the Act by the Punjab Act (No. 3 of 1912), was not adopted by the erstwhile Patiala State to which these cases relate and the law in the Union was exactly the same as it was in the Punjab prior to the amendment, jurisdiction of the Court should be determined solely on the allegations in the plaint and no notice whatsoever should be taken of the plea raised by the Defendant as was held by a Full Bench of the Punjab Chief Court in- ''Haji Mohd. Bakhsh v. Bhagwan Das'' 76 Pun Re 1909 (A). The Punjab Tenancy Act of 1887 was enforced mutatis mutandis in the erstwhile Patiala State on 1st Asoj, Sambat 1958 corresponding to 16-8-1901 (A.D.), i.e., prior to its amendment; in 1912, and it is conceded by Shri P.L. Handa, the learned Counsel for the defendants, that the amendment was never adopted in the said State. Our office and the Law Department as well have not been able to show that any such proviso was ever added to the Section by any subsequent amendment of the Act in the State. By virtue of Article 3 of Ordinance 16 of 2005 (Bk), the law in the Union is to be the same as was in force in the erstwhile Patiala State. Section 77 of the Punjab Tenancy Act has,'' therefore, to be applied to these cases without the said proviso inserted by Act 3 of 1912. Now Section 77(3) reads as follows:

The following suits shall be instituted in and heard and determined by revenue Courts, and no other Courts shall take cognizance of any such dispute or matter with respect to which any suit might be instituted.

Under Section 9 of the C.P.C. civil Courts have plenary jurisdiction to entertain and decide all suits of civil nature and their jurisdiction in any particular matter cannot be regarded as ousted unless Legislature has in unmistakable language taken away that jurisdiction. The above Sub-section (3) of Section 77 of the Punjab Tenancy Act, which ousts the jurisdiction of the Civil Courts must, therefore, be construed strictly and it should be made to oust the jurisdiction of the civil Courts in regard to such cases only as are clearly actually covered by the precise terms of one or other of the clauses of this section.

First part of the sub-section takes away the jurisdiction of civil Courts to entertain and decide suits which fall under one or more of the clauses attached to it because it specifically provides that they shall be instituted in and heard and determined by revenue Courts. Its second part bars civil Courts to take cognizance of the dispute or matter with respect to which any such suit might be brought in a revenue Court. Civil Courts shall, thus refuse to entertain a suit which falls under one of the categories mentioned in the section but if in a suit which, as initially instituted, does not fall under any of those categories and is, therefore, cognizable by a civil Court, either of the parties during its trial takes up a plea with respect to which any suit might be brought by him in a revenue Court, second part of the sub-section enjoins that the civil Court shall refuse to take cognizance of and deter that plea. The obvious result is that in a case like this the Court shall proceed on to hear and decide the suit as if no such plea was raised & leave the party to get it settled by a revenue Court. This is the plain meaning of Section 77(3) as it stood in the original Act without the proviso added to it in 1912. Now, it is the character of a suit as originally framed and presented to the Court that will determine the nature of the suit and not the defence that may be set up or the character which it may assume in the course of its trial., The present suits are for possession of land of which the Plaintiffs allege themselves the owners & the defendants as mere trespassers. The suits are not by a landlord to prove that the defendant, a tenant, has no right of occupancy in the land nor are they suits by a landlord to eject a tenant. The suits thus do not fall under clause ''d'' or ''e'' or under any other clause of Section 77(3); and cannot, therefore, be thrown out by a civil, Court as exclusively triable by a revenue Court under the first part of the sub-section. The defendants, however, contested the suits on the ground that they had been in possession of the land as tenants for more than half a century and since they had thereby acquired occupancy rights they could not now be ousted. The defendants are admittedly in possession of the land and they allege themselves to be holding as tenants under the; Plaintiffs. To establish a claim to a right of occupancy they could bring a suit in a revenue Court as provided by Clause (d) of the sub-section; and unless they had done so and succeeded in the suit, this plea of theirs could not be entertained by the civil Court. The second part of Sub-section (3) stand in the way of the civil Court to take cognizance of the plea raised by them. The only course open for the civil Court would be to proceed on with the suit ignoring the defendants plea.

It would look very much anomalous and result in great hardship to a Defendant if when in answer to a suit for possession of agricultural land against him he raises a plea which goes to the very root of the case, the civil Court has simply to ignore that plea because it refers to matters in respect of which a revenue Court alone is competent finally to adjudicate. In the present case, the defendants pleaded that they were occupancy tenants of the land and could not, there fore, be ejected. This plea obviously went to the very root of the case. If it succeeded the Plaintiffs'' case must have necessarily failed; whereas if it did not succeed the Plaintiffs as, there was no other defence, must have won the case. It is surely a travesty of justice that the court should be compelled to grant the Plaintiff a decree because the plea urged by the Defendant though it goes to the very root of the case, relates to matters upon which the civil court can give no final decision and most, therefore, ignore it. It amounts to saying that the court is to decide the suit only upon one side''s view of the case and that it is debarred from entertaining a plea of the defendant, which, if established, would result in dismissal of the Plaintiffs'' claim. The position no doubt, is very extraordinary and unsatisfactory. It denies the defendants a right to urge and an opportunity to satisfy the court that they had acquired occupancy rights and, therefore, were entitled to remain in possession of the land. But the law must have its own course and it must be adhered to even at the risk of possible injustice to particular litigants. For this a court of law is not responsible, because its function is to interpret law and apply it as it is and not as it ought to be.

The position of law in the Punjab (prior) to its amendment in 1912) was the same as It now is in this Union & a similar view was then taken is a number of decisions of the Punjab Chief Court in - Ghanaya v. Basan Mal 96 Pun Re 1894 (B) the plea of the defendants that the sale of occupancy rights in favour of the Plaintiffs, on which their claim for possession of the land was based, was void since it was made without the consent of the landlord had to be ignored by the Division Bench because Clause (3) of Section 77 of the Punjab Tenancy Act debarred a civil Court from taking cognizance of any dispute with respect to which a suit might be instituted in a revenue Court. The correctness of this decision was considered by a Full Bench of the Chief Court in - ''Asa Nand v. Kura'' 11 Pun Re 1895 (C) & it was held that

a civil Court is debarred by Section 77 of the Punjab Tenancy Act, 1887, from taking cognizance of an objection raised by the landlord by way of defence to a suit brought by the transferee that a transfer of his occupancy rights by a tenant was voidable at the instance of such landlord u/s 60 of the Act.

The view of Roe S.J. in 96 Pun Re 1894 to the effect that the plea of a defendant, with respect to which he could bring a suit in a revenue Court, must be ignored if it is taken in defence of a suit cognizable by a civil Court was, therefore, approved. A similar question again came up before the Chief Court in - ''Fakira v. Dhani Natth'' 24 Pun Re 1907 (D). The Plaintiff in that case sued in a civil Court for Rs. 5/-, the value of a tree cut and removed by the defendants on land alleged to be of the Plaintiff and with which the defendants had no concern whatever. The defendants pleaded that they were occupancy tenants and so entitled to the tree. Because of the contents of the plaint and allegations of the Plaintiff the suit was held to be triable ''by a civil Court and it was further held that

in view of the wording of Section 77(3), Punjab Tenancy Act, 1887, the civil Court could not take cognizance of the defendant''s plea that they were occupancy tenants, but must ignore that plea, leaving defendants to any remedy that might be open to them by suit in the revenue Court.

Rattigan J. considering the hardship & injustice that would ensue if the principle laid down in these decisions were to be accepted and followed, referred the matter again to a larger bench of the Punjab Chief Court in ''76 Pun Re 1909 (A)'', The leading judgment of the Full Bench consisting of the five eminent Judges was written by the referring Judge himself and it was with great reluctance that he had to endorse the view laid down in the previous decisions. To quote him in his own words, this is how he concluded,

I think we should be well-advised, therefore, in adhering to the plain terms of the law, even at the risk of possible injustice to particular litigants. For this a Court of law is not responsible and the utmost that we can do is to point out that in some cases a strict adherence to the terms of Section 77(3) of the Act may result in great hardships to a Defendant whose perfectly genuine and valid plea would, if it could be considered, put the Plaintiff at once out of court, but against whom a decree has to be given for the sole reason, that the plea is not one entertainable by the civil Court.

Three of the learned Judges concurred with the view expressed by him and with a majority of four it was held by the Full Bench that "no plea raised by a defendant, in reply to a civil claim can be entertained or taken cognizance of by a civil Court (even incidentally), if that plea relates to any matter in respect of which such Defendant would be entitled to bring a suit in a revenue Court (vide Section 77(3) of the Punjab Tenancy Act, 1887), and that such pleas must be entirely ignored by a civil Court, even if they go to the very root of the case.

As already observed, I am in respectful agreement with the majority view of the Full Bench and cannot but hold that the plea of the defendants has to be left out of consideration by the civil Court.

It was to avoid this anomaly and difficulty that the Legislature amended the section and added a proviso to it in 1912. The practical effect of this proviso is that while before its enactment civil Courts were prohibited from trying those suits only in which the question raised in the plaint ''ex facie'' fell within one or other of the clauses of Sub-section (3) of Section 77, their jurisdiction is now barred in those cases also, in which on the averments in the Plaintiff suit is properly triable by a civil Court, but the defendants'' pleas raised a question. which under this section is to be determined by revenue Courts only. On such a plea being raised and the Court finding that it has become necessary to decide it, it must return the plaint for presentation to the revenue Court. As already observed this proviso has not so far been adopted in the Union and recourse to it cannot be had in the present case. The Sub-Judge, therefore, could not have returned the plaints to be presented to a revenue Court nor could he himself send the cases to the revenue Court for decision. He should have proceeded with the cases himself ignoring the plea raised by the defendants. In the result these references, though on a different ground are accepted and the cases are sent back to the Assistant Collector 1st Grade, Narnaul, (District Mohindergarh) with the direction that he should return the plaints for presentation to the Sub-Judge I Class, Narnaul, who has been held to be competent to take cognizance of the suits. The parties have been directed through their counsel to appear in the court of the Assistant Collector on 18-2-1953.

Teja Singh, C.J.

I agree and wish to add a few words. It is now well-settled that for determination of the question whether or not a particular suit is cognizable by a civil Court or a Revenue Court, only the allegations made in the plaint have to be looked to and not the pleas raised by the defendant. In all the cases which are the subject-matter of these references the Plaintiffs alleged that they were the owners of the respective lands and the defendants had illegally taken possession of them. This means that the defendants were mere trespassers and the relationship of landlord and tenant did not exist at all. It is true that the defendants pleaded that they had acquired occupancy rights but this allegation of theirs could not be taken into consideration while determining whether the Civil Court has jurisdiction to try the suits. Reliance was placed on behalf of the defendants on Sub-section (3) of Section 77 and it was urged that because the suits could come within the purview of Clauses (d) arid (e) of the second group, they could only be instituted in and heard and determined by revenue Courts. The contention is wholly devoid of force Sub-section (3) of Section 77 reads as follows:

The following suits shall be instituted in and heard and determined by Revenue Courts, and no other Courts shall take cognizance of any dispute or matter with respect to which any suit might be instituted:

Then follows the three groups of suits. It will be seen that the Sub-section firstly applies to suits enumerated in Clauses (a) to (p) mentioned under it and secondly to disputes or matters with respect to which any suit could be instituted. The suits with which we are dealing here do not come within the purview of any of the clauses. Clause (d) does not apply to them because they are not suits by tenants to establish a claim to a right or occupancy. On the other hand, they are suits by land-owners against trespassers. Nor they are hit by Clause (e), because the Defendant in each case is not a tenant out a trespasser. It is true that the pieas of the defendants do raise disputes or matters with respect to which they can bring suits against their respective landlords to establish claims to rights of occupancy, but the words of the sub-section being that no Court other than a Revenue Court can take cognizance of any such dispute or matter the Civil Courts in which these suits were instituted, were debarred from taking any notice of them.

This view is supported by a number of cases decided by the Punjab Chief Court including ''76 Pun Re 1909 (A). In that case a reference was made to the Chief Court u/s 100 of the Punjab Tenancy Act, 1887, and the following question was referred to a Full Bench of five Judges by Rattigan J.

Whether the decisions of the Full Bench reported as - ''Asa Nand v. Kura'', (C) and of the Division Bench reported as - ''Fakiria v. Dhani Nath'', (D), are correct, and if not, what should be the procedure of a Civil Court when, in answer to a claim determinable by that Court, the Defendant urges a plea which relates to matters or disputes of which the Civil Court cannot take cognizance, under the provisions of Section 77(3) of the Punjab Tenancy Act, 1887.

It was held by the majority following 11 Pun. Re. 1895 (C) and 24 Pun. Re. 1907 (D), that no plea raised by a defendant, in reply to a civil claim, can be entertained or taken cognizance of by a Civil Court (even incidentally), if that plea relates to any matter in respect of which such Defendant would be entitled to bring a suit in a revenue Court and that such pleas must be entirely ignored by a Civil Court, even if they go to the very root of the case. It was argued before the Chief Court that the words "and no other Court shall take cognizance of any dispute or matter with respect to which any such suit might be instituted" in Section 77(3) of the Punjab Tenancy Act must be taken to refer to the allegations or pleas of the Plaintiff alone and should not be held to include pleas by the defendant. It may here be mentioned that Section 77 of the Punjab Tenancy Act then was the same as Section 77 of our Tenancy Act. This is what Rattigan J. with whom three of his learned colleagues concurred said regarding the above contention:

The words of the sub-section are exceedingly wide and admittedly would cover pleas by the defendant, and I regret I cannot agree that they do not in the clearest and most unequivocal manner include the latter.

Later on the learned Judge said:

The Clause (Clause 3 of Section 77) begins by stating that suits of a certain kind shall be instituted in, and heard and determined by, Revenue Courts. Obviously this refers to the Plaintiff''s part of the case. It then goes on to enact that no other Court shall take cognizance of any dispute or matter with respect to which such suits might be instituted in a Revenue Court''. I find it impossible to interpret these words in the manner suggested, on the contrary, they seem to me (after full consideration) to cover, as clearly as words can, pleas by a Defendant which relate to matters in respect of which such Defendant might bring a suit in a Revenue Court, if he so desired. In other words, no, plea raised by a Defendant in reply to a civil claim can be entertained or taken cognizance-of by a Civil Court if that plea relates to any matter in respect of which such Defendant would be entitled to bring a suit in a Revenue Court.

Following these authorities and agreeing with my learned brother I hold that all these suits were cognizable by a Civil Court and in view of the law as it stands, no notice whatsoever should have been taken of the defendant''s pleas.

It was urged before us that this would mean great hardship to the defendants and the result would be anomalous. This is no doubt correct but when the words of a statute are clear we cannot refuse to interpret them in the manner they ought to be interpreted and give effect to them because of the hardship. This question was also considered by Rattigan J. in ''Haji Muhammad Bakhsh''s case'' (A), mentioned above. He observed:- (After quoting the passage: "I think we shall be well advised entertain able by Civil Court" already reproduced in para. 5 His Lordship says:) In the Punjab when the defect in the Tenancy Act was brought to the notice of the Government they moved the Legislature to remove it by making a suitable amendment to Section 77 and consequently a proviso to the section was added to the Punjab Tenancy Act by the Amending Punjab Act 3 of 1912, according to which where in a suit cognizable by 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, civil Court shall endorse upon the plaint the nature of the matter for decision and the particulars required by Order 7 Rule 10, C.P.C., and return the plaint for presentation to Collector, etc. Unfortunately no such step was taken by our State and this is the reason why we are faced with the same difficulty which existed in the Punjab before the Amending Act of 1912 was passed. I should think that in order to remove the difficulty it is necessary to amend the Section 77 of our Act on the lines of the Punjab Amendment. A copy of this order should be forwarded to the Government for such action as they might like to take.