Smt. Lakhi vs Sohan Lal and Others

J.N. Bhat, J.—This is a civil second appeal against the order of learned Addi. District Judge Poonch dated 8-11-03 whereby he set aside a

decree passed in favour of the Appellant by the Sub-judge Kajaurl on 31-8-03.

The Plaintiff-Appeiiant brought a suit for possession against the Defendant with the allegation that she was an occupancy tenant of the land

measuring 4 kanais and 6 marlas In village Sagot, Tehsll Kajaurl. The Appellant was In possession of the land and had been wrongfully

dispossessed by Ganga Ram, father of Defendants 2 to 5. Defendant No. 1 had also joined in tacking forcible possession of the land.

The defence of the Defendants was that the Plaintiff was in fact an occupancy tenant of the land, but she had abandoned her rights, and the

father of Defendants 2 to 5 had in his life-time taken possession of the land. Defendant No. 1 also was one of the heirs of Ganga Ram deceased

and therefore he was in possession of the land.

The trial Court struck two issues in this case. The first issue was whether the suit was cognizable by a civil court when the Plaintiff had admitted

that she was an occupancy tenant of Ganga Ram. The second was: ""Was the pialntlir in possession of the land until 2010 as occupancy tenant of

Ganca Ram""?

The parties produced evidence. The trial Court first decided issue No. 1 in favour of the painter and held that the suit was cognizable by a civil

Court. Later on issue No. 2 also was decided in favour of the Plaintiff. Consequently the Sub-Judge passed a decree in favour of the plaintiff-

Appellant on 31-8-63 as already stated. Against that decree an appeal was preferred before the Addi. District Judge Poonch who reversed the

decree of the trial Court on issue No. 1, holding that the suit was cognizable by a revenue Court. On issue No. 2 the lower appellate Court

affirmed the finding of the tried court. The Addi. District Judge there fore directed the return of the plaint to the plaintiff for presentation to the

proper forum. Against that order of the Addi. District Judge the preson appeal has been filed by Mst. Lalchi Plaintiff.

The two courts below have held Issue No. 2 in favour of the Plaintiff. The divergence in the findings of the two courts below is with respect to

issue No. 1. The trial' Court has held that the suit is cognizable by a civil Court, whereas the lower appellate court has held that it is not so, and the

only proper court for entertaining such a suit is a revenue Court. Therefore the only point to be decided in this appeal is whether the finding of the

trial Court or that of the lower appellate Court is ""correct?

I have hoard the arguments of the learn ed counsel lor the parties. The learned Counsel for the Appellant has referred to Baru v. Niadar, AIR

1913 Lah 217 (FB) which is based upon earlier authorities reported as Nihal Singh v. Kanian, 9 I'un Re 1888 (FB); Jott v. Maya 14 Pun Re 1891

(FB); Kesar Singh v. Nihal Singh, 45 Pun Ke 1891 (FB) and Chetav. Balja, AIR 1927 Lah 452 (FB) of that case. He also cited the following

authorities:

Dalip Bingn v. Court of Wards, Dada Siba Estates, AlK 1952 Punj 283; Magiti Sasamal Vs. Pandab Bissoi, ; and Durga Singh v. Thoiu, AIR

1903 SC 301.

The other side referred to 3 J&K LK 12 and Parmanand and Others Vs. Rakha and Others, .

The provisions of the Punjab Tenancy Act are similar to those of the Tenancy Act of this State, the only difference being that the sections are

differently numbered. Section 77 of the Punjab Act corresponds to Section 85 of the State Act. Therefore the interpretation that Is placed on these

sections by the Punjab High Court can be a safe guide for determination of the matter in controversy before me.

In AIR 1952 punj 94 Kapur J. has laid down that a tenant can bring a suit in a revenue court within one year of his dispossession and after that

his remedy is in a civil court where he can file a suit for possession.

3 J and K L R 12 does support the learned Counsel for the Respondents, but In view"" of the matter having been decided by the Supreme

Court in AIK 1962 SC 547 and AIK 1963 SC 361 (Supra) this authority cannot be regarded as good; law because under the constitution the law

declared by the Supreme Court shall be the law of the land and any judgment of the Supreme Court is binding on all the courts in India. The

authority of this High Court (Supra) will therefore be deemed to be overruled by the Supreme Court authorities.

The crux of the Lahore authorities as approved by the Supreme Court is that in order to bring a suit in a revenue Court the relationship of a

landlord and tenant must be admitted and subsisting. once a tenant is dispossessed he ceases to be a tenant and cannot therefore bring suit for

recovery of possession In a revenue Court. The Lahore authorities have discussed the matter in detail. in AIR 1942 Lah 217 (Supra) the Full

Bench consisting of five Judges discussed and distinguished the previous authorities of the Lahore iiigh Court and the Privy Council. The Supreme

Court in Shri Raja Durga Singh of Solan Vs. Tholu, has laid down that ""there is no entry or item in Section 77(3) relating to a suit by or against a

person claiming to be a tenant and whose status as a tenant is not admitted toy the landlord. It would, therefore, be reasonable to Inter that the

legislature barred only those suits from the cognizance of a civil court whore there was no dispute between the parties that a person cultivating land

or who was in possession of land was a tenant. A suit for possession and mesne profits against the Defendants who claimed to be occupancy

tenants but whose status as tenants was denied by the Plaintiff, is not barred from the cognizance of the civil court u/s 77 (3) read with the first

proviso.

In the instant case also the status of the Plaintiff at the time of the institution of the suit was denied. It was admitted that she was an occupancy

tenant at some previous stage when she had abandoned her occupancy rights. Therefore at the time of the institution of the suit there was no

relationship of the landlord and tenant, and according to the Supreme Court and other authorities referred to above, the proper forum for such a

suit would be the civil court. This will lead to the conclusion that the finding of the lower court on issue No. 1 is not correct. As on issue No. 2 the

finding of both the courts is in favour of the Plaintiff, there being no other issue in the suit, the order of return of the plaint to the Plaintiff for its

presentation to the proper court made by the lower appellate court is set aside. It follows that the appeal is accepted and a decree for possession

of the land as prayed for by the Plaintiff is passed in her favour with costs.

Learned Counsel for the parties shall be informed of this order.