2S.C.R. SUPREME COURT REPORTS 693 SHRI RAJA DURGA SINGH OF SOLAN
Vv. _ THOLU (K. C. Das Gupraand J. R. MupHoixas, Jd.)
Jurisdiction of court—Suit for ejectment of licence from | agricultural lands—Defendant claiming to be tenant—Sutt if .
maintainable in Civil Court—Punjab Tenancy Act 1887 (Pun. XVI of 1887), ss. 44. and 47.
The appellant filed a suit before the Civil Ccurt for the ejectment of the respondents on the ground that they were licenses. The respondents claimed that they. were occupancy tenants and contended that under s. 77 of the Punjab
' Tenancy Act, 1887, the suit was triable by a revenue court only and not by the civil court. The trial court and the first- appellate court decreed the suit holding that the respondents were not tenants. On ‘second appeal the Judicial Commissioner held that the respondents were ‘occupancy tenants and that the civil court had no jurisdiction to entertain the suit.
Held, that the civil court had jurisdiction to entertain the suit. Section 77 of the Punjab Tenancy Act was applicable only to suits between landlord and tenants where there was no dispute that the person cultivating the land was a tenant. But where the status of the defendant as a tenant was not admitted by the landlord, s. 77 did not bar a suit in a civil court.
Sham Singh v. Amarjit Singh, (1930) I. L: R. 12 Lah. {ll and Baru v. Niadar, (1942) 1. L. R. 24 Lah, 191, F. B., approved.
Magiti Sasamal v. Pandab Bissoi, [1962] 3 S. C. R. 673, relied on.
Held, further that the finding of the first two courts that the respondents were not tenants was one of fact even though documentary evidence had to be considered in determining the question and the Judicial Commissioner had no jurisdiction to interfere with it in second appeal. The Judicial Commis. sioner had ignored the presumption which arose from entires in the revenue records under s. 44 of the Act and this vitiated his findings. Where there is conflict between prior and subsequent entries, the later entries must prevail.
May t.
Shri Raja Durga Singh of Solan v.
Thole
694 SUPREME COURT REPORTS [1963)
’ Civia APPELLATE JURISDICTION: Civil Appeal No. 382 of 1960.
Appeal by special leave from the judgment ald decree dated October 3i, 1957, of the Judicial Commissioner's Court of Himacha) Pradesh at Simla in Civil Regular Second Appeal No. 8, of
1957.
Achhru Ram and Naunit Lal, for the appellant.
Anil Kumar Gupta, S.C. Agrawal, R. K. Garg, D. P. Singh and M. K. Ramamurthy, for the respondents.
1962. May 1. The Judgment of the Court was delivered by
MupHoLkarR, J.— In this appeal by special leave against the judgment of the Judicial Commissioner, Himachal Pradesh in second appeal two points have been urged on behalf of the appellant. The first is that the Court of the Judicial Commissioner was in error in interfering with a finding of fact of the District Judge and the second is that the Court of the Judicial Commissioner was wrong in holding that the suit was uot triable by a civil court but is triable by a revenue court under s. 77 of the Punjab Tenancy Act, 1887(Punj. XVI of 1887) (hereinafter referred to as the Act) which applies to Himachal Pradesh.
In order to appreciate these points it is necessary to state some facts. The appellant who was plaintiff in the suit was the former ruler of the State of Bhagat, one of the Simla Hil! states. The State of Bhagat and several other Simla Hill States were merged in Himachal Pradesh on July !, 1947. Asa consequence of the merger the ruler surrendered his suvereignty to the new States. Khasra Nos. 70, 80, 81, 167, 263/170, L71, 172, 173 and 269/177 measuring in all 15 bighas and 19 aw?
2S8.0.R. SUPREME COURT REPORTS 605 biswas, among other property, were declared to be the private property of the appellant. It is the appellant’s case that these fields are his Khudkhast lands, that they are recorded as much in the revenue papers ever since the year. 1936 and that the defendants were granted licence to cultivate these lands on his behalf with the obligation that the entire produce from the lands should be handed over by them to the appellant at the end of every year. The consideration for the arrangement was @ remission in rent and land revenue which the appellant had granted to the respondents with - respect to certain other lands which were leased out by him to the respondents. Bulk of these lands were declared to be the State properiy as a result of the merger and presumably the respondents have now to pay full assessment or rent with respect to them.. According to the appellant the reapondents failed to hand over the annual produce from the fields in suit to him and, therefore, he leased out the lands at Ra. 500/- per annum to Chuku Koli for Rs. 500/- for a period of ono year from Ootuber, 1950. The respondents, however, obstructed Choku in taking possession of the land and despite repeated demands by the appellant, they kept him out of possession. He therefore, instituted a suit for possession and mesne profits from Rabi 1950 to Kharif 1953 at m. 500 per annum and future profits in July, 1954.
On behalf of the respondents it was contended that they were the occupancy tenants of these lands for the last two or three generations, that they were cultivating these lands jointly and severally and that the suit was not cognizable by a civil court. They also contended that had filed a suit against the appellant in the court of the Assistant Collector, First Grade, Solon for a declaration to the effect that they are in possession of the lands as occupancy
‘tenants and that, therefore, the appellant's suit
Shri Raja L urge Singh of So'an v. Tholu - ae
Mudholkar J,
1962 * Shri Raja Durga Singh of Soten ¥. Thelu
Bfudhetkay J,
696 SUPREME COURT REPOi TS [1963}- should be stayed. The trial court decreed the suit of the appellant as against all the respondents including the claim for mesne profits. The respondents
‘preferred-an appeal before.the District Judge,
Mahau. He dismissed the appeal and- confirmed
_ the. decree of the trial-court. They, therefore;
preferred second appeal to the Court of Judicial Commissioner. - The Judicial Commissioner allowed
~the appeal holding that the respondents were occu- pancy tenants of the lands and that consequently the provisions of s. 77 (3) read with the first proviso thereto barred the jurisdiction of the civil court. On this finding the Judicial Commissioner set aside the decree granted by the trial court and affirmed by the District Judge and directed that the plaint
. be returned for presentation to proper court. —
. It is contended before us by Mr. Achhru Ram for the appellant that for a suit to be barred under
8. 77 (3) of the Act from the cognizance of a civil court two conditions have to be satisfied. The first
. is that the suit should relate to one of the matters — _.deseribed in sub-s.3 and the second is that the | existence of the relationship of landlord and tenant -Should be admitted by the parties. If these two conditions are not satisfied then, according ‘to him,
‘the suit is not barred from the cognizance of a civil court. In support of his contention he has relied upon the decision in Sham Singh v. Amarjit Singh ; () Baru v. Nader ; (?) Daya Ram v. Jagir Singh (+). He has also relied upon certain observations of this Court in Magiti Sasamal v. Pandab
...Bissot (*). Section 77 (3) and the first proviso there to run as follows:
“The following suits shall be instituted in, and heard and determined by Revenue Courts, and no other Court shall take cognizance of
(1) (1990) 3.4.R 12 Lah. 111. 42) (1842) 1.L.R.24 Lah. 191 F.B, _ (3) A-LR’ (1956) Him. Pra. €1. (4) (1962) 3 S.C.R. 673, ad
28.C.R. SUPREME COURT REPORTS 607 any dispute or matter with respect to which any such suit might be instituted:— Provided that—
- (1) where in a suit cognizable 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 shall endorse upon the plaint the nature ofthe matter for decision and the particulars required by Order VII, rule 10, Code of. Civil procedure and return the plaint for presentation to the Collector.”
- We are not concerned with the second proviso. Below the second proviso the kind of -suits which are triable by the revenue courts are set out in three groups.. It is contended on behalf of the respondents that the suit in question would fall under entry (e) in the second group. That entry reads thus:
“suits by a landlord to eject a tenant.”
They also contend that their suit before the revenue court was one under entry (d) which reads thus: .
“Suits by a tenant to establish a Claim to a right of occupancy, or by landlord to prove that a tenent has not such a right.”
It would, however, appear that. not only it can (d) and (e) but every other item in the three groups relates to a dispute between tenants on the one hand and the landlord on the other. There is no entry. or item relating to a suit by or against a person claiming to be a tenant and whose status as @ tenant is not admitted by the landlord. It would, therefore, be reasonable. to infer that the legislature barred only those suite form tho cognizance of a civil court where there
Shri Rajz. Murga Singh of Solan v.
Tholu
Sh.i Roja Durga Singh of Solan ¥.
Thelu Mutheikar J,
698 SUPREME COURT REPOKTS [1963]
was n0 dispute between the parties that a person cultivating land or who was in possession of land was a tenant. This is precisely what has been held in the two decisions of the Lahore High Court relied upon by Mr. Achhru Ran. In the first of these two cases Tek Chand J., observed:
“It is obvious that the bar under clause (4) is applicable to those cases only in which the relationship of landlord and tenant is admitted and the object of the suit is to determine the nature of the tenancy i. e. whether the status of the tenant falls under sestions 5, 6, 7 or 8 of the Act.”
Tn that case the suit was instituted by someone claiming to succeed to the tenancy of certain land onthe death of the occupancy tenant. The learned Judge observed:
“In a suit like the one before us the point for decision is not the nature of the tenancy, but whether the defendant is related to the deceased tanant and if so whether their common ancestor had occupied the land. If these facts are established, the olaimant
' §pso facta succeeds to the occupancy tenancy. But if they are found agaivet him, he is not a tenant at all.”
As this facts were not established the High Court held that the landlord was entitled to sue the defendant who had entcred on the land asserting a claim to bea collateral of the deceased tenant but who failed to substantiate his claim. This view was affirmed by a Full Bench consisting of five Judges in the other Lahore case. In Daya Ram v. Jagir Singh (') the same Judicial Commiesionir who decided the appeal before us has expressed the view that where in a suit for ejectment the existence of the relationship of
(1) A.LR. (1986) Him. Pra. 61.
aw
28.0.R. SUPREME COURT REPORTS 699 landlord and tenant’ is not admitted by the parties the Civil Court had jurisdiction to try the suit and that such a suit did not fall under s. 77 (3) of the Act. In Magiié Sasamal v. Pandab Bissot (') this Court was considering the provisions of s. 17 (1) of the
‘Orissa Tenants Protection Act, 1948 (3 of 1948).
The provisions ,,of;that section run thus:
“Any disBate between the tenant and the landlord as regards, (a) tenant’s possession of the land on the Ist day of September, 1947 and his right to the benefits under this. Act, or (b) misuse of the land by tenant, or (c) failure or the tenant to cultivate the land properly, or (d) failure of the tenant to deliver to the landlord the rent accrued due within two months from the date on which it becomes payable, or (e) the quantity of the produce payable to the landlord as rent, shall be decided by the Collector on the application of either of the parties.” —
It was contended in that case on behalf of the respondents who claimed to be tenants that suit for permanent injunction instituted by the appellant landlord was barred by the provisions of s. 7 (1). Dealing with this contention this Court observed as follows:
“In other words, s. 7 (1) postulates the relationship of tenants and landlord between the parties and proceeds to provide for the exclusive jurisdiction of the Collector to try the five categories of disputes that may arise between the landlord and the tenant. The disputes which are the subject-matter of s.
- 7 (1) must be in regard to the five categories.
That in the plain and obvious construction of the words ‘any dispute as regards’. On this construction it would be unreasonable to (1) (1962) 8 S.C.R. 678.
Shri Roja Durga /ingh of Solan Ve
Thelu Mudholkar J,
700 SUPREME COURT REPORTS [1963]
1962 hold that a dispute about the status of the Shei Rojo Duge tenant also falls within the purview of the Singh of Solan said section. The scheme of 8. 7 (1) is unam- Tht biguous and clear. It refers to the tenant —_—— and landlord as such and it contemplates Mudhelkar J. disputes of the specified character arising between them. Therefore, in our opinion, even on a liberal construction ofs. 7 (1) it would be difficult to uphold the argument that a dispute as regards the existence of relationship of landlord and tenant falls to be determined by the Collector under s. 7 (1)”.
Tke observations of this Court would clearly apply to the present case also inasmuch as the relationship of landlord and tenant as between the parties to the suit is not admitted by the appellant.
Now we will come to the second point because the argument is that on the finding of the learned District Judge the respondents are tenants and, therefore, their ejectment cannot be ordered by a Civil Court. As already stated the appellant challenged the finding of the Judicial Commissioner on the point on the ground that it had no jurisdiction to reverse the finding of the District Court because it was a finding of fact on the question. There is no doubt in our. mind that the learned Judicial Commissioner was in error in reversing the finding of fact of the District Judge particularly so because the finding of the District Sadge is based upon a consideration of entries in the record of rights from the year 1936 onwards showing that the lands were the khudkhast lands of the appellant and were in his possession, The learned Judicial Commissioner has omitted to bear in mind the provisions of s. 44 of the Act which givea presumptive value to the entries in revenue records. It was argued before us that there are prior entries which are in conflict with those on which the learned District Judge hag ry ae A
28.0.R.. SUPREMECOURT REPORTS 701 relied. It is sufficient to say that where there is such a conflict, it is the later entry which must prevail. Indeed from the language of.s. 44 itself it follows that where a new entry is substituted for an old one it is that new entry which will take the place of the old one and will be entitled to the presumption of correctness until and unless it is established to be’ wrong or substituted by another entry. In Deity Patlabhiramaswamy v. S. Hanymayya(') this Court held that a finding of fact arrived at by the District Judge onthe consideration of all — evidence, oral and documentary, adduced by the parties, cannot be set aside in second appeal. ‘The question here is whether .the respondents are the tenants of the appellant. Though for determining the question documentary evidence fell to be considered, the finding on the question is no less a finding of fact. than may have been the case if the evidence to be considered was merely oral. As was pointed out by this Court in that case as well as recently in Sir Chunilal V. Mohta & Sons Ltd., Bombay v. The Century Spinning & Manufacturing Co. Lid, Bombay (*) an issue of law does not arise merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed. Of course here, as we have already pointed out, the Judicial Commissioner has ignored the presumption arising from certain documentary evidence and. therefore, there is an additional reagon Vitiating its finding. ;
Upon this view we set aside the decree of the Court of the Judicial Commissioner and restore that of the trial court as affirmed by the District Court. Costs throughout will be borne by the parties as incurred. .
“Appeal allowed. (1) A-T-R. (1959) S.C. 57, (2) (1962) Supp: 3 S.C.R, 549,
F amatetite ted tee oe
Shri Raja Durga Singh af Solan ve Tholu