Sohan and Others vs Sarup and Others

Harnam Singh, J.—To appreciate the point of law arising in these proceedings, the facts must be set out in some detail. Sohan Son of Jag Ram, Raja son of Mohan, Karta son of Kishan Lal, Surat Singh son of Ghandan and Kanshi Ram son of Shiv Ram instituted Revenue Suit No. 170 of 1946 in the Ct. of the Assistant Collector, 1st Grade, Karnal District, against Sarup Singh, son of Sardara, Rati Ram son of Harjas, Jai Chand son of Phul Singh, Gordhan son of Ram Jas, Bakhtawar son of Nathu and Bholar son of Mugla of village Mandi, Tehsil Sanipat for the recovery of Rs. 52 being their one-fifth share in the rent of the shamilat fields known as "Chauwala" measuring 64 bighas and 16 biswas. Defts. 1, 2, 3, 5 and 6 contested the suit and on the pleadings of the parties the Assistant Collector fixed the following issues:

(1) Whether the pltfs. are co-sharers in the shamilat deh? If so, what is their share?

(2) Whether the defts. have realised Rs. 260 as rent?

Revenue Suit No. 170 of 1946 was a representative suit under Order 1, Rule 8, Civil P.C. In that suit the pltfs. represented the Brahmins of Panna Hansan of village Mandi, Tehsil Panipat, while the defts. represented in that suit the other tribes of Panna Hansan of village Mandi Tehsil Panipat.

On issue No. 1 the Assistant Collector found that the pltfs. were co-sharers in the shamilat and had one-fifth share in the shamilat. On Issue No. 2 the Assistant Collector found that the pltfs. were entitled to recover Rs. 52 from the defts. Defts. did not appeal from the order passed by the Assistant Collector in Revenue Suit No. 170 of 1946.

On 3-3-1948, Sarup Singh son of Sarda, Rati Ram son of Harjas, Jai Chand son of Phul Singh, Bakhtawar son of Nathu, Bholar son of Mughli and Lakhi son of Shiv Ram instituted civil Suit No. 62 of 1948 against Sohan son of Jagram, Raja son of Pujan, Karta son of Kishan Lal and Surat Singh son of Chandan for declaration that the defts. were not cosharers in the shamilat and for injunction restraining the deffs. from asserting rights under the decree passed by the Assistant Collector in Revenue Suit No. 170 of 1946 on 14-10-1947. Defta. resisted the suit pleading inter alia that civil Cts. had no jurisdiction to try the suit and that the judgment of the Assistant Collector passed in Revenue Suit No. 170 of 1946 on 14-10-1947, operated as res judicata to the trial of civil Suit No. 62 of 1948. On the pleadings of the parties, the trial Ct. fixed the following issues:

(1) Whether the Civil Court has no jurisdiction to try the suit?

(2) Whether the subject-matter of the suit has been decided by the Revenue Ct. and was it competent to decide finally the question involved and what is the effect of that decision?

On issue 1 the trial Ct. found that Civil Cts. possess jurisdiction to try the suit. On issue 2 the trial Ct. found that the question of the defts. being co-sharers to the extent mentioned in the decree of the Revenue Ct. was res judicata. In the result, the trial Ct. dismissed the suit, leaving the parties to bear their own costs.

From the decree passed by the trial Ct. on 20-7-1948, pltfs. appealed in the Ct. of the Senior Subordinate Judge, Karnal. In deciding the appeal the Senior Subordinate Judge has found that the decision of the Revenue Ct. does not operate as res judicata to the trial of civil Suit No. 62 of 1948 and setting aside the judgment and the decree of the trial Ct. has remanded the suit for trial on merits. From the order of remand passed by the Ct. of first appeal on 21-2-1949, defts. have come up in appeal under Rule 1(u) of Order 43, Civil P.C.

From what I have said above, it appears that the sole question that arises for decision in the present proceedings is whether the judgment of the Revenue Ct. passed in Revenue Suit No. 170 of 1946 operates as res judicata in civil Suit No. 62 of 1948.

Section 9 of the Code confers plenary jurisdiction on civil Courts to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Section 11 of the Code provides inter alia that no Ct. shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Ct. competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

Clearly, in order to found an estoppel u/s 11 of the Code the former decision must be that of a Ct. competent to try the subsequent suit. To this rule there is an exception when the former Ct. is a Ct. of exclusive jurisdiction. In such a case on general principles of res judicata the decision of the Ct. of exclusive jurisdiction is conclusive on the matter decided by that Ct. notwithstanding the fact that the former Ct. was not competent to decide the subsequent suit.

Counsel for the applts. contends that civ. Suit No. 62 of 1948 falls within Section 77(3), Second Group. Clause (k), Punjab Tenancy Act, 1887, hereinafter referred to as the Act, and that being so civil Cts, cannot take cognizance of the suit.

As stated above, civil Suit No. 62 of 1948 is for declaration that the defts. have no right, title or interest in the shamilat in suit and for an injunction restraining the defts. from asserting rights under the decree passed in Revenue Suit No. 170 of 1946 on 14-10-1947, in the Ct. of the Assistant Collector, Karnal. Now, Clause (k) of Section 77 of the Act does not contemplate suits for declaration and injunction between rival claimants to the shamilat. In order to bring the case under Clause (k) of Section 77, the pltf. must be a cosharer in the state or holding and must claim a share of the profits thereof or settlement of accounts. Clearly, the present suit is not a suit of the type contemplated by Clause (k) of the Act. That being so, Section 11 does not bar the trial of civ. Suit No. 62 of 1948.

The question that remains for decision is whether the jurisdiction of the civil Ct. has been taken away by Section 77 of the Act. Section 77(3) enacts that suits falling under that section shall be instituted in and heard and determined by Revenue Cts. and no other Ct. shall take cognizance of the dispute. In the present proceedings it is conceded that civil Suit No. 62 of 1948 does not come within any clause other than Clause (k), Second Group, of Section 77 of the Act but as already stated, the suit does not come within Section 77, Clause (k), Second Group. That being so, civil Cts. are not precluded from taking cognizance of Civ. Suit No. 62 of 1948.

In the result, the appeal fails and is dismissed with costs. Parties are directed to appear in the trial Ct. on 23-12-1950.