Punjab-Haryana High Court
Arjan vs Baley on 25 November, 1970
Equivalent citations: AIR 1971 PUNJAB AND HARYANA 469
JUDGMENT
1. The plaintiff filed five separate applications under Section 14-A of the Punjab Security of Land Tenures Act (Punjab Act 10 of 1953) for the ejectment of defendants Ram Sarup and another, Net Ram, Mam Chand, Budhan and Arjan. The defendants, before the revenue Court, took up the objection that they were not the tenants and the revenue Court rejected the applications on the ground that since the question of title was involved in those applications it was not competent to decide and thereafter the plaintiff filed five separate suits being 465, 466, 467, 468 and 469 of 1968 against Ram Sarup and another, Net Ram, Mam Chand, Budhan and Arjan respectively regarding the land detailed in the plaint and sought its possession from the respective defendants on the ground that the plaintiff was the owner and the defendants were the trespassers on the land under their respective possession. The defendants resisted their respective suits and claimed to be the owners of the suit land under their respective possession. On the pleadings of the parties, the trial Court framed the following issues:
"1. Whether the plaintiff is the owner of the property in suit?
2. Whether the suit is barred by limitation?
3. Relief."
Later on, the defendants sought permission to amend their written statements to seek additional issues, which permission was granted and consequently the following additional issues were framed by the trial Court:
"2-A. Whether the defendant is a tenant on the suit land under the plaintiff?
2-B. Whether Civil Court has got no jurisdiction?
3-B. Whether the suit is not maintainable?
4-B. Whether the defendant is estopped from raising the plea mentioned in issue No. 2-A?"
2. It may be stated here that the trial Court consolidated all the suits, as the similar questions of law and facts were involved therein.
3. The trial Court held that the plaintiff was the owner of the land under possession of the defendants. It also held that the defendants had failed to prove themselves to be the tenants. It also gave a finding that the defendants had failed to prove themselves to be the owners by adverse possession and with these findings the trial Court decreed all the suits. Four defendants went up in separate appeals. Mam Chand defendant is suit No. 467 of 1968 not having filed the same. And the first appellate Court also disposed of all the four appeals 225/13, 226/13, 227/13 and 228/13 of 1969 by one judgment. It also concurred in the view of the trial Court and dismissed the appeals.
4. Out of the defendants only two i.e. Arjan and Budhan have come up to this Court in appeals being R. S. As. 272 and 273 of 1970 and I also intend to decide both these appeals by this judgment.
5. It may be stated here that before the lower appellate Court the plaintiff's ownership of the suit land was not disputed and the appellants' counsel before the first appellate Court challenged the findings of the trial Court regarding the jurisdiction of the civil Court, as also regarding its finding that the defendants had failed to prove their adverse possession and before me also the counsel for the appellants has addressed me regarding the findings on those two issues only.
6. The lower appellate Court, following, Dhan Devi v. Salwant Singh. 1966 Pun LJ 94 and Mangat v. Tehan, 1966 Pun LJ 224; held that it was not open to a party to approbate and reprobate and having once taken a stand before the revenue Court that they were not the tenants of the plaintiff and on that plea having secured a decision in their favour, they could not again turn round and say that the Civil Court had no jurisdiction because of the relationship of tenant and landlord between the contending parties. I am in respectful agreement with the proposition of law enunciated in those two decisions, but this case posed a peculiar problem and that is that the lower appellate Court had found that the defendants had failed to prove that they were the tenants and thus the Civil Court had the jurisdiction to decide the matter, but while dealing with the other issue regarding claim of defendants to have become owners by adverse possession, the lower appellate Court, following Sohawa Singh v. Kesar Singh, AIR 1932 Lah 586, held that mere non-payment of land revenue and cesses did not determine a tenancy and so inspite of the fact that they failed to pay the land revenue and cesses, they continued to be the tenants, and thus their possession continued to be a permissive possession. That being the position, the lower Court held, they could not be considered to be in adverse possession. With these observation, it rejected the plea of adverse possession advanced by the defendants.
7. A combined reading of the findings of the lower appellate Court under the two issues leads to rather baffling results. Under the one issue, it has been held that the defendants have failed to prove themselves to be the tenants nor they can claim such a status having once denied it and they having taken advantage of that denial, but in the next breath, while deciding the question of adverse possession, the lower appellate Court holds that the defendants continued to be the tenants over the land and so their possession was permissive and not adverse. The lower appellate Court confirmed the judgment and decree of the trial Court and dismissed the suit on the ground that once a tenant repudiates the title of the landlord, he has no right to continue in possession and from the date of the repudiation of the title of the landlord, the landlord is entitled to recover the possession and eject the tenant. A Single Bench decision of this Court in Harphul v. Sehja, 1967-69 Pun LR 901, was brought to the notice of the lower appellate Court, but it distinguished that case on the grounds which are at least not intelligible to me.
The principle of law enunciated by Shamsher Bahadur, J, in that case was that once a Civil Court comes to a conclusion that the person, who is sought to be dispossessed, is a tenant on the land in dispute, it is the duty of the Civil Court to stay its hands after giving that finding and thereafter direct the parties to approach the revenue Court to take out ejectment proceedings. An argument was raised before the Single Judge that once a person had repudiated the title of the landlord, he forfeited his right to be considered a tenant and he could not challenge the jurisdiction of the Civil Court by saying that he was the tenant or on the ground that the plaintiff himself admitted that the defendant was his tenant. Shamsher Bahadur, J. on consideration of various decisions, as also after the consideration of the provisions of sub-section (2) of S. 100 of the Punjab Tenancy Act, which reads-
"If on perusal of the record it appears to the High Court that the suit was so determined in good faith, and that the parties have not been prejudiced by the mistake as to jurisdiction the High Court may order that the decree be registered in the Court which had jurisdiction":
came to the conclusion that even if a tenant had made himself liable to forfeit his right of being considered a tenant by repudiating the title of the landlord, it was not open to the Civil Court to order his dispossession in view of the provisions of Section 9 of the Security of Land Tenures Act, which provides that a tenant can only be ejected from his holding on the grounds specified therein. In view of the said provisions of the Punjab Security of Land Tenures Act, the principle incorporated in Section 111(g)(2) of the Transfer of Property Act will have no application. So if a Court finds on the material placed before it that the party in possession of the suit land is a tenant, it must send the case to the revenue Court.
8. It was argued before me that the Civil Court does not wholly lack the jurisdiction in such matters and Section 100 of the Punjab Tenancy Act empowers the Civil Court, after giving its finding to send the decree passed by it to be registered by the revenue Court which had the jurisdiction, but, in my opinion, this course can be open only when the grounds on which the revenue Court can eject the tenant, have been pleaded before the Civil Court and the evidence has been led by either side in favour or against such grounds and after taking into consideration the material placed before it by either side, the civil Court gives its findings on those grounds and finds a particular ground for the ejectment of the tenant to be proved and passes a decree of ejectment and sends that decree to the revenue Court to be registered there as a decree of that Court. But in the present case, no ground, as envisaged in Section 9 of the Punjab Security of Land Tenures Act for the ejectment of a tenant, has been pleaded and so in this case the parties had no occasion to lead evidence and consequently the Civil Court had no occasion to give its finding on any such relevant ground. So, the question of taking advantage of the provisions of Section 100 of the Punjab Tenancy Act in this case does not arise.
9. In paragraph 2 of the plaint, the plaintiff himself has alleged that the land in question was let out to the defendants as tenants at-will on payment of land revenue and cesses. That being the position, in view of the law enunciated in AIR 1932 Lah 586, with which I am in respectful agreement, like the lower appellate Court, I am constrained to hold that the defendant-appellants before me continued to remain the tenants over the suit land.
10. In view of my finding that the tenancy of the defendant-appellant over the suit land in their possession does not stand determined and they continued to be the tenants, then only course open to me, by following the law laid down by Shamsher Bahadur. J. is to direct the plaintiff to take ejectment proceedings before the revenue Court against the tenant-defendant, if he so minds.
11. In view of the above discussion, I accept these appeals (R. S. As 272 and 273 of 1970), set aside the judgments and decrees of the Courts below, but in the circumstances of the case I do not consider it just and proper to burden the respondent with the costs of the appellants.
12. Appeals allowed.