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 Chandan and Kanshi Ram son of Shiv Ram instituted Revenue Suit No. 170 of 1946 in the Court 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. Defendants 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 Plaintiffs are co-sharers in tho shamilat deh? If so, what is their share?

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

Revenue Suit No. 170 of 1946 was a representive suit under Order 1, Rule 8, Code of Civil Procedure. In that suit the Plaintiffs represented the Brahmins of Panna Hansan of village Mandi, Tehsil Panipat, while the Defendants 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 Plaintiffs were oo-sharers in the shamilat and had one-fifth share in the shamilat. On issue No. 2, the Assistant Collector found that the Plaintiffs were entitled to recover Rs. 52 from tho Defendants. Defendants 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 Defendants were not co-sharers in the shamilat and for injunction restraining the Defendants from assorting rights under the decree passed by the Assistant Collector in Revenue Suit No. 170 of 1040 on 14-10-1947. Defendants resisted the suit pleading inter alia that civil Courts had no jurisdiction to try the suit and that the judgment of the Assistant Collector passed in Revenue Suit No. 170 of 1940 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 Court 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 Court and was it competent to deoide finally the question involved it what is the effect of that decision?

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

From the decree passed by the trial Court on 20-7-1948, Plaintiffs appealed in the Court of the Senior Subordinate Judge, Karnal. In deciding the appeal the Senior Subordinate Judge has found that the decision of the Revenue Court 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 Court has remanded the suit for trial on merits. From the order of remand passed by the Court of first appeal on 21-2-1949, Defendants have come up in appeal under Rule 1(u) of Order 43, Code of Civil Procedure.

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 Court passed in Revenue Suit No. 170 of 1946 operates as res-judicala 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 Court 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 Court competent to try such subsequent suit or the suit in which such issue has boon subsequently raised.

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

Counsel for the Appellants contends that Civil 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 Courts cannot take cognizance of the suit.

As stated above, Civil Suit No. 62 of 1948 is for declaration that the Defendants have no right, title or interest in the shamilal in suit and for an injunction restraining the Defendants from asserting rights under the decree passed in Revenue Suit No. 170 of 1946 on 14-10-1947, in the Court 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 shamilal. In order to bring the case under Clause (k) of Section 77, the Plaintiff must be a co-sharer 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 Civil Suit No. 62 of 1948.

The question that remains for decision is whether the jurisdiction of the civil Court 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 Courts and no other Court 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 Courts are not procluded from taking cognizance of Civil Suit No. 62 of 1948.

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