Kishno and others vs Gurdit Singh and another

G.C. Mital, J.

A document dated 2.8.1923 was executed vide which the predecessorsininterest of the plaintiffs were inducted as perpetual lessees (Patta Dowami) and that document was registered on 21.8.1923 in favour of the predecessorsininterest of the plaintiffs by the predecessorsininterest of the defendants. On 19.8.1971, the present suit was filed for a declaration that the plaintiffs are occupancy tenants having right of occupancy or that they have acquired such right with consequential relief to restrain the defendants from interfering with the peaceful possession of the plaintiffs. The defendants contested the suit and pleaded that for declaration of rights of having acquired occupancy tenancy, the only remedy is under section 77 of the Punjab Tenancy Act, 1887 (hereinafter referred to as the Act) and civil. suit in this behalf is excluded by virtue of section 77 (3) of the Act. On merits it was pleaded that the plaintiffs had abandoned the rights in the land in dispute and had settled in Rajasthan. Both the Courts below held that the plaintiffs have acquired occupancy rights in view of the perpetual lease deed. Exhibit P. 6 and other documentary evidence on the record which ripened into ownership by virtue of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952. It was also found that the plaintiffs had not abandoned the land in dispute as throughout in the revenue records they were shown to be in occupation thereof. The defendants have come to this Court in second appeal.

After hearing the learned counsel for the parties, I am of the view that in view of section 77 (3) of the Act the matters covered by clause (d) which relates to suits by a tenant to establish a claim to a right of occuancy or by a landlord to prove that a tenant has not such a right, were within the exclusive jurisdiction of the Revenue Court and the Civil Court had no jurisdiction to go into such matter. It is not disputed that the plaintiffs are neither recorded to be occupancy tenants in the revenue records nor have been declared to be so by any Revenue Court before filing of the suit. Therefore, it is clear that the plaintiff wanted a declaration from the Civil Court that they have acquired the rights of occupancy in the land in dispute. Since the matter was within the exclusive jurisdiction of the Revenue Court, the Courts below fell in error in usurping that jurisdiction and in declaring the plaintiffs to have acquired the occupancy rights under section 5 of the Act. Accordingly, this part of the judgments of the two Courts below is set aside and it is held that the plaintiffs will have to agitate this matter by filing a suit under the Act before a Revenue Court.

However, I find from the document Exhibit P. 6 that a parpetual lease was granted in favour of the plaintiffs and they have continued to be in possession till the filing of the suit. Since the defendants have failed to prove that the plaintiffs have abandoned the land in dispute, the only relief that can be granted to the plaintiffs is that they will continue to occupy the land in terms of Exhibit P. 6 till evicted in due course of law.

For the reasons recorded above, the judgment and decrees of the two Courts below are modified and while the suit of the plaintiffs for declaration of rights as occupancy tenants is dismissed with liberty to agitate this matter before the Revenue Court, the plaintiffs are granted a decree of declaration that they are in occupation of the land in dispute as tenants under Exhibit P. 6 and will continue in possession thereof till evicted in due cause of law. In view of the divided success the parties are left to bear their own costs.