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Judgment
Dua, J.—This judgment will dispose of R.S.A. No. 430 of 1962 and C.R. No. 451 of 1982 because they involve the same question of law.
In R.S.A. No. 430 of 1962, the Gram Panchayat Deh Mauza Garhi Brahman, Tehsil Sonepat, instituted a suit in the Court of first instance for possession (with injunction) of about 18 bighas of land against Kesho Narain an 11th July, 1960. The Punjab Village Common Lands (Regulation) Act, 18 of 1961 (hereinafter called the Act) was enforced on 4th May, 1961. On 22nd May, 1961, the plaint was returned, as I am told, for excluding the prayer for injunction and also including some more area of land in the plaint. This, it is stated at the Bar, was necessitated because the defendant had in the meantime forcibly taken possession of some more land. The suit was resisted on several grounds giving rise to various issues. One of the issues with which alone we are concerned at the present stage, related to the jurisdiction of the trial Court to try the suit. The respondent''s learned counsel has stated that this issue arose on account of the plea that the defendant was a tenant. The Court of first instance decided this issue in favour of the plaintiff observing that the suit involves a question of title and is, therefore triable by a civil Court, whose jurisdiction is not excluded by the revenue Court as pleaded in the written statement. The plaintiff was on the merits granted the decree claimed.
An appeal was taken by the defendant to the Court of the Senior Subordinate Judge and it appears that reliance in that Court was placed on the amended Act, according to section 7 of which, an Assistant Collector is empowered to put Panchayats into possession of lands vested or deemed to have been vested in them. Section 13 of the new Act was also relied upon which bars the jurisdiction of civil Courts over any matter arising out of the operation of the Act. The learned Senior Subordinate Judge upheld this objection and setting aside the judgment and decree of the Court below accepted the appeal and dismissed the suit. It is against this order that the present second appeal has been preferred.
To begin with, the question poses itself whether the order of dismissal of the suit is justified technically because in case the trial Court was held not to possess jurisdiction to deal with the case on account of the statutory bar, then would not the proper order have been to direct the rejection of the plaint? Was the dismissal of the suit a correct order to be passed? But as I am inclined to hold that the trial Court had juridiction to proceed with the present suit, it is unnecessary to say anything on this point which it may be pointed out, was not urged at the Bar either.
The appellant''s learned counsel has submitted that the question raised being one of title, it is a civil Court alone which can go into the plea and determine the controversy. In support of this contention, my attention has been drawn to Kundan v. Sardara (1959) 61 P.L.R. 208, where dealing with section 44 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act L of 1948 I observed that the jurisdiction of civil Courts is not ousted by that section in so far as the question of title is concerned. A decision by P.C. Pandit J. in Gram Panchayat of village Azizpur Kalan v. Mehar Singh (1962) 64 P.L.R. 282, coming to the same conclusion has also been relied upon. The counsel has also cited Kishun Sah Vs. Harinandan Prasad Sah and Others, , where it is observed that a Tribunal of limited jurisdiction cannot have unlimited power and that by giving a wrong decision it cannot usurp jurisdiction which it does not possess. This decision does not seem to me to be of any direct applicability in the case in hand. Reference has in addition been made to Raja Durga Singh v. Tholu (1962) 64 P.L.R. 837 (S.C.), in which the Supreme Court observed while construing section 77 of the Punjab Tenancy Act that the Legislature had barred only those suits from the cognizance of a civil Court where there was no dispute between the parties that a person cultivating land or who was in possession of the land was a tenant. Om Prakash Gupta Vs. Rattan Singh and Another, is another Supreme Court decision which has been cited in this connection, but, in my opinion, this case is of little assistance to the appellant because after holding that the Delhi Kent Control Act proceeds on the assumption of relationship of landlord and tenant and it does not in terms authorise the authorities under the Act to determine finally the question of relationship of landlord and tenant, it does proceed to observe that the simple denial of such relationship cannot have the effect of ousting the jurisdiction of the authorities under the Act. An other decision of the Supreme Court cited by the appellant is Firm Seth Radha Kishan v. The Administrator, Municipal Committee, Ludhiana (1963) 65 P.L.R. 942 (S.C.), where it is laid down that u/s 9, Code of Civil Procedure, the Courts has jurisdiction to try all suits of civil nature excepting those of which cognizance is either expressly or impliedly barred and that a suit in a civil Court will always lie to question the order of a Tribunal created by statute if it abuses its power or does not act under the Act but in violation of its provisions. This again is, in my opinion, of a meagre assistance to the appellant. Finally reference has been made to a Full Bench decision of this Court in Mst. Jafran Begum v. Custodian of Evacuee Property (1962) 64 P.L.R. 708, where while dealing with section 46 of the Administration of Evacuee Property Act it was observed that the civil Court''s jurisdiction would not be excluded when questions of title arose for determination.
It has in addition been contended that the suit was instituted in July, 1960 when there was no provision in the Village Common Lands Act of 1954, then in force, excluding civil Courts'' jurisdiction similar to section 13 of the Act of 1961. It is contended that once the Court was seized of the suit, the subsequent amendment could not divest the Court of its jurisdiction because the amended Act was not intended to operate retrospectively, so as to affect pending proceedings.
The respondents learned counsel has submitted that the real point in issue relates to the nature of the defendant''s possession and this, according to him, is to be determined by the Collector who is empowered to order the Panchayat to be put in possession of the shamilat land. The counsel has very frankly conceded that in the defendant''s pleas, it was not admitted that the land in dispute is shamilat. It has further been urged that the amended Act merely brings about a change in regard to procedure and, therefore, it must be deemed to operate retrospectively.
In my opinion, the provision taking away the jurisdiction of the civil Courts cannot be considered to be a mere matter of procedure which should not be held to operate retrospectively. The suit had been instituted at a time when the civil Court was fully competent to entertain the suit. Later amendment cannot, without express words, or necessary intendment divest the Court of the jurisdiction which it exercised at the time of entertaining the suit so as to undo the entire proceedings held by the civil Court upto the date of the amendment. Such a construction would be contrary to all canons of statutory interpretation and would also tend to defeat the cause of justice and fair pray.
The argument that the amendment in the plaint effected on 22nd May, 1961 could not be made in face of the provisions of the amending Act is also not easy to sustain. At the time of amendment no objection seems to have been raised on this account. Indeed, the objection to the jurisdiction of the civil Court on account of section 13 of the amended Act was never taken in the Court of first instance, as is obvious from the judgment. As is well-settled, amendment in plaint normally relates back to the date of the institution of the suit except where question of limitation arises on account of new parties being impleaded or new cause of action in regard to some other property being urged for relief. It is however contended that at least in regard to the new land included by amendment the suit should have been held to be barred. This objection should have been raised in the trial Court at the time of amendment.
But be that as it may, I am also inclined, as at present advised, to hold that in the case in hand where the parties did not agree that the land in dispute is shamilat land the civil Court would, in my opinion, be prima facie entitled to adjudicate upon the controversy, in that, it relates to a question of title. The scheme of the Act does not seem to support the suggestion that the Assistant Collector was intended to be a substitute for a civil Court and his summary proceedings to put the Panchayat into possession a substitute for a regular trial of a question of title. Exclusion of civil Court''s jurisdiction regarding questions of title is not to be too readily inferred; and it is all the more so when the exclusion is sought to operate in regard to pending proceedings which at the time of their initiation were within the jurisdiction of the Civil Courts. To exclude the civil Court''s jurisdiction, there must need be either express provision or necessary intendment.
For the foregoing reasons, this appeal succeeds and allowing the same I set aside the judgment and decree of the lower appellate Court and send the case back to it for a fresh decision in accordance with law and in the light of the observations made above. Parties are directed to appear in the lower appellate Court on 2nd of March 1963.
In C.R. No. 451 of 1962 the suit had been instituted on 25th of April 1960, with the result that for the reason that the new amending Act is not retrospective in its operation, the civil Court was fully competent to try and dispose of the suit finally. The learned counsel has, however, raised an additional point in this case. According to him, section 8 of the Punjab Village Common Land (Regulation) Act of 1954 also barred the jurisdiction of the civil Courts like section 13 of the amending Act. In my opinion, it is not section 13 alone which has the effect of ousting the jurisdiction of the civil Courts under the present Act, but it is section 13 read with section 7 that the jurisdiction of the civil Courts is urged to have been taken away in connection with the claim of possession by the Panchayat over the shamilat land. In any case, the question of title is not covered by the language of section 8 of the Act of 1954. Reference has also been made by the counsel to Maxwell on Interpretation of Statutes, 1953 Edition at p. 225, but this passage is of no assistance to the learned counsel in the present case.
In the result, this revision also succeeds and allowing the same, I set aside the orders of the two Courts below and send the case back to the trial Court for further proceedings in accordance with law and in the light of the observations made above. Parties are directed in this case also to appear in the trial Court on 2nd of March 1964.