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PETITIONER: SHRI RAJA DURGA SINGH OF SOLAN

       Vs.

RESPONDENT: THOLU

DATE OF JUDGMENT: 01/05/1962

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. GUPTA, K.C. DAS

CITATION:  1963 AIR  361            1963 SCR  (2) 693  CITATOR INFO :  R          1987 SC2205  (10)

ACT: Jurisdiction  of  court-suit for ejectment of  licence  from agricultural  lands-Defendant claiming to be tenant-Suit  if maintainable  in Civil Court-Punjab Tenancy Act 1887  (Punj. XVI of 1887), 88. 44 and 47.

HEADNOTE: The  appellant filed a suit before the Civil Court  for  the ejectment  of the respondents on the ground that  they  were licenses.  Tile 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) 1. L. R. 12  Lah.   111 and  Baru  v. Niadar, (1942) I. L. R. 24 Lah. 19 1,  F.  B., approved. Magiti  Sasamal  v. Pandab Bissai, [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 bad no  jurisdiction to  interfere  with  it  in  second  appeal.   The  judicial Commissioner  had ignored the presumption which  arose  from entire  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.

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694

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 382 of 1960. Appeal  by special leave from the judgment and decree  dated October  31, 1957, of the Judicial Commissioner’s  Court  of Himachal 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 MUDHOLKAR,  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 not 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 Hill  states.  The State of Bhagat and several  other  Simla Hill States were merged in Himachal Pradesh on July 1, 1947. As  a consequence of the merger the ruler  surrendered  his sovereignty to the new States.  Khasra Nos. 70, 80, 81, 167, 263/170,  171,  172,  173 and 2691177 measuring  in  all  15 bighas and 19 695 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 hamded over  by them  to  the appellant at the end  of  every  year.   The consideration  for the arrangement was a 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 property 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  respondents failed to hand over  the  annual produce  from the fields in suit to him and,  therefore,  he leased  out the lands at Rs. 500/- per annum to  Chuku  Koli for  Rs. 500/- for a period of one year from October,  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 mesneprofits 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

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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 occupation tenants and that, therefore, the appellant’s suit 696 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 occupancy 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 s. 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 described 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 ; (2) Daya Ram  v. Jagir Singh He has also relied upon certain observations  of this Court in Magiti Sasamal v. Pandab Bissoi (4).   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)  (1930) I.L.R 12 Lah.  III    (2) (1942)  I.L.R.24  Lah. 191 F.B.   (3) A.I.R (1956) Him.  Pis. 61. (4) (1962) 3 S.C.R. 673. 697 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 of the 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)

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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  a  tenant is not admitted by the  landlord.   It  would, therefore,  be  reasonable  to infer  that  the  legislature barred only those suits form the cognizance of a civil court where there 698 was no 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 sections 5, 6, 7 or  8  of               the Act." In that case the suit was instituted by someone claiming  to succeed  to the tenancy of certain land on the death of  the occupancy tenant.  The learned Tudge 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 claimant ipso facto               succeeds  to  the occupancy tenancy.   But  if               they are found against 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 entered on the land asserting a claim to be a 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  (1)  the same Judicial Commissioner 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.I.R. (1956) Him.  Pra. 61.  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  Magiti Sasamal v. Pandab Bissoi (1) 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  dispute  between  the  tenant  and   the               landlord  as regards, (a) tenant’s  possession               of the land on the 1st 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

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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) 3 S.C.R. 673.               700               hold  that a dispute about the status  of  the               tenant  also falls within the purview  of  the               said section.  The scheme of s. 7 (1) is unam-               biguous  and clear.  It refers to  the  tenant               and  landlord  as  such  and  it  contemplates               disputes  of the specified  character  arising               between them.  Therefore, in our opinion, even               on a liberal construction of s. 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)". The  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  riot 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 arid, 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  Judge 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  give  a presumptive value to the entries  in  revenue records.   It  was  argued before us that  there  are  prior entaries  which  are  in conflict with those  on  which  the learned District Judge has 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 Pattabhiramaswamy v. S. Hanymayya(1)  this Court held that a finding of fact arrived at by the District Judge  on  the  consideration  of  all  evidence,  oral  and

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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.   Ltd, Bombay  (2)  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 reason 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.  1. R. (1959) S. C. 57.  (2) (1962) Supp.  3  S.C.R. 549, 702